MAJOR ISSUES IN THE FEDERAL LAW OF

EMPLOYMENT DISCRIMINATION

Fifth Edition

George Rutherglen

John Barbee Minor Distinguished Professor of Law

Earle K. Shawe Professor of Employment Law

University of Virginia

School of Law

Federal Judicial Center

2012

Kris Markarian

Legal Editor

This Federal Judicial Center publication was undertaken in furtherance 

of the Center’s statutory mission to develop educational materials for the 

judicial branch. While the Center regards the content as responsible and 

valuable, this publication does not reflect policy or recommendations of 

the Board of the Federal Judicial Center.

iii

Contents

Preface v

Introduction 1

I. Prohibitions and Defenses in Title VII 9

Individual Claims of Disparate Treatment 10

McDonnell Douglas and Its Limits 10

McDonnell Douglas and the Right to Jury Trial 16

Mixed-Motive and After-Acquired Evidence Cases 19

Class Claims of Disparate Treatment 24

Class Claims of Disparate Impact 32

Decisions before Wards Cove 33

Wards Cove and the Civil Rights Act of 1991 35

Proof of Disparate Impact 37

Defendant’s Burden of Proof 39

The Theory of Disparate Impact and Affirmative Action 45

Affirmative Action 49

Statutory Issues 49

Constitutional Issues 55

EEOC Guidelines 58

Seniority Systems 60

Sex Discrimination 62

Bona Fide Occupational Qualifications 62

Pregnancy 66

Comparable Worth 67

Sex-Segregated Actuarial Tables 69

Sexual Harassment 70

National Origin Discrimination 76

Religious Discrimination 80

Retaliation 83

Advertising 86

Coverage 87

II. Procedures and Remedies in Title VII 89

Statutes of Limitations 90

Limitations for Filing with the EEOC 90

Limitations for Filing in Court 93

General Principles 94

Private Actions 97
iv

Individual Actions 97

Class Actions 98

Arbitration 101

Public Actions 104

Actions by Federal Employees 105

Remedies 107

Civil Rights Act of 1991 107

Equitable Remedies 110

Taxation 112

Class Actions and Pattern-or-Practice Actions 114

Attorney’s Fees 116

Qualifications and Exceptions 119

How an Award Is Computed 121

Preclusion 123

III. Age Discrimination in Employment Act 127

Prohibitions and Exceptions 127

Procedures and Remedies 134

IV. Discrimination on the Basis of Disability 139

Rehabilitation Act of 1973 140

Americans with Disabilities Act 143

Coverage of Disabilities 147

Discrimination and Reasonable Accommodation 153

V. Other Prohibitions Against Employment Discrimination 163

Reconstruction Civil Rights Acts 163

Section 1981 163

Section 1983 167

Section 1985(3) 169

Equal Pay Act 170

Regulation of Federal Contractors 174

Regulation of Recipients of Federal Funds 177

Statutes on Other Subjects 179

Selected Bibliography 181

Table of Cases 185

Table of Cases (listed by court) 201
v

Preface

This edition of Major Issues in the Federal Law of Employment Discrimination discusses developments in the law through June 2011. These developments, like those recounted in earlier editions, are many and varied. 

This field of law continues to expand to cover new forms of discrimination and additional employment practices. Both new judicial decisions 

and new legislation have addressed the issues in this field in increasing 

detail. It would have been impossible to keep up with all of these developments without the diligent efforts of my research assistants, Nicholas

Bluhm, Laura Bowers, Kevin Kelly, and Diane Wielocha. For similar 

reasons, I am grateful to Foundation Press, which has allowed me to use 

material from my book Employment Discrimination Law: Visions of 

Equality in Theory and Doctrine (third edition 2010) in updating this 

monograph. Several federal judges have read and commented on this and 

earlier editions of this monograph, most recently Judge Denny Chin of 

the United States Court of Appeals for the Second Circuit. I continue to 

be grateful to them and to the editors at the Federal Judicial Center, who 

read the entire manuscript and recommended several important changes. 

Everyone who assisted with this monograph improved it in ways too 

numerous to mention, but I remain responsible, of course, for any mistakes.

Introduction

Earlier editions of this monograph analyzed two major pieces of legislation that profoundly changed the federal law of employment discrimination: the Americans with Disabilities Act of 19901 and the Civil Rights 

Act of 1991.2 Both of these statutes responded to perceived deficiencies 

in existing law: the first, to the limited coverage of laws protecting the 

disabled, and the second, to accumulated judicial decisions that had generally restricted the scope and enforcement of previously enacted laws. 

The same process renewed itself in the last year, with the passage of the 

Genetic Nondiscrimination Act of 2008,3 the ADA Amendments Act of 

20084 and the Lilly Ledbetter Fair Pay Act of 2009.5 Congress also is 

actively considering the Employment Non-discrimination Act,6 which 

extends the prohibitions of Title VII to discrimination on the basis of 

perceived or actual sexual orientation and gender identity.

The current edition examines the law after the courts and Congress 

have tried to assimilate these changes to the increasing number of federal 

statutes that prohibit employment discrimination. Perhaps we stand at the 

threshold of further fundamental changes, but predicting developments in 

this field, and especially the details of how and when they will occur, is a 

notoriously treacherous exercise. The developments over the last two 

decades already offer enough material for analysis and exposition. No 

one of these developments, by itself, has signaled a decisive shift in employment discrimination law, but cumulatively they have confirmed several trends first evident in the legislation of the early 1990s. The law has 

evolved toward ever more intricate statutory provisions and correspondingly detailed judicial decisions. It has also relied increasingly on dam-

 

1. Pub. L. No. 101-336, 104 Stat. 327, 42 U.S.C. §§ 12101–12213 (2006).

2. Pub. L. No. 102-166, 105 Stat. 1071 (1991) (codified in part in scattered sections 

of 2 and 42 U.S.C. (2006)).

3. Pub. L. No. 110-233, 122 Stat. 881 (2008) (codified in scattered sections of 26, 

29, and 42 U.S.C.A. (2010)).

4. Americans with Disabilities Amendments Act of 2008, Pub. L. No. 110-325, 122

Stat. 3553 (2008) (codified in 29 U.S.C.A. § 705 (2010) and 42 U.S.C.A. §§ 12101-10 

(2010)).

5. Pub. L. No. 111-2, 123 Stat. 5 (codified in Title VII at §§ 706(e)(3), 717(f), 42 

U.S.C.A. §§ 2000e-5(e)(3), 16(f) (2010)).

6. H.R. 3017, 111th Cong., 1st Sess. (2009)
Major Issues in the Federal Law of Employment Discrimination

2

ages as a remedy for employment discrimination and therefore on tort 

principles to determine liability. Newer statutes have also shifted away 

from racial discrimination as the principal target of civil rights laws to

discrimination on other grounds, such as disability, as evidenced by the 

recent comprehensive set of amendments to the Americans with Disabilities Act (ADA). This introductory section places these developments in 

the context of previously enacted statutes.

The most important of these statutes is Title VII of the Civil Rights 

Act of 1964.7 Title VII is both the broadest federal statute that prohibits 

discrimination in employment and the model for many of the narrower 

statutes. Title VII generally prohibits discrimination in all aspects of employment on the basis of race, color, religion, sex, or national origin by 

employers, unions, employment agencies, and joint labor–management 

committees. Despite the breadth of its prohibitions, Title VII was the 

product of an arduous legislative struggle that led to important compromises in matters of both substance and procedure. These compromises 

were necessary to secure enactment of the Civil Rights Act of 1964, and 

in particular, to obtain the two-thirds majority then required to invoke 

cloture in the Senate.8 Because of the controversy surrounding Title VII, 

its legislative history consists primarily of debates on the floor of each 

house. In the Senate, the bill that eventually became the Civil Rights Act 

of 1964 was never sent to committee for fear that it would never be reported out. Even in the House of Representatives, such important provisions as the general prohibition against sex discrimination were added to 

the bill on the floor without any consideration by committee. Although 

Title VII was fully debated in both houses, the debate often compounded 

 

7. Civil Rights Act of 1964, §§ 701–718, 42 U.S.C. §§ 2000e to 2000e-17 (2006).

Section 2000e-2(a) states:

It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against 

any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants 

for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as 

an employee, because of such individual’s race, color, religion, sex, or national 

origin.

8. Francis J. Vaas, Title VII: Legislative History, 7 B.C. Indus. & Com. L. Rev. 431 

(1966).
Introduction

3

the ambiguities of important provisions, such as those concerned with 

bona fide occupational qualifications, equal pay, employment testing, 

and affirmative action.9

Since its enactment, Title VII has been subject to repeated and extensive amendments, beginning with the Equal Employment Opportunity 

Act of 1972. This act also was the product of hard legislative bargaining, 

particularly over the provisions for public and private enforcement of the 

statute. The same intense legislative debate preceded enactment of the 

Civil Rights Act of 1991, which followed a similar bill that had been vetoed by the President a year earlier. The crucial issues that animated the 

legislative debate in 1990 and 1991 were affirmative action, the theory of 

disparate impact, and limits on damages for employment discrimination.10 Similar issues had provoked controversy in 1964 and 1972 but not 

in such highly technical form. Partly because the Civil Rights Act of 

1991 modified or overruled several decisions of the Supreme Court, its 

provisions added a new level of detail to Title VII. In the Lilly Ledbetter 

Fair Pay Act of 2009,11 Congress rejected another decision of the Supreme Court restricting the time limit for bringing claims of pay discrimination. This level of detail has led to renewed intensity in the debates 

that have always surrounded Title VII.

As it has throughout its history, Title VII continues to be the source 

of fundamental questions about the nature of discrimination, often appearing in the form of difficult issues of statutory interpretation. This 

topic is taken up immediately in Chapter 1, but it is important to note that 

it extends far beyond the strict limits of Title VII itself, to the Constitution, other federal statutes, and federal regulations that also prohibit discrimination in employment. These other sources of federal law have been 

interpreted and applied according to doctrines developed under Title VII,

sometimes to the point of adopting the literal terms of Title VII by incorporation or cross-reference. This is true both of substantive and procedural provisions from Title VII, which accordingly are treated at length 

in the first two chapters of this book. Other doctrines—such as immunity 

 

9. Civil Rights Act of 1964, § 703(e)(1), (h), (j), 42 U.S.C. § 2000e-2(e)(1), (h), (j) 

(2006).

10. See Symposium, The Civil Rights Act of 1991: Theory and Practice, 68 Notre 

Dame L. Rev. 911 (1993).

11. Pub. L. No. 111-2, 123 Stat. 5 (codified in Title VII at §§ 706(e)(3), 717(f), 42 

U.S.C.A. §§ 2000e-5(e)(3), 16(f) (2010)).
Major Issues in the Federal Law of Employment Discrimination

4

from liability for damages—have no counterpart under Title VII, while

others raise issues that cut across many subjects beyond employment 

discrimination—such as the standards for awarding attorney’s fees. This 

monograph treats these issues briefly, not because they lack significance

but because their significance exceeds the bounds of a monograph focused on employment discrimination law. Other federal laws that share 

this focus, such as the Age Discrimination in Employment Act (ADEA) 

and the ADA, therefore receive more extended treatment than those that 

do not.

A brief survey of the other sources of federal law reveals both the 

diversity of their origins and their fundamental similarity to the prohibitions in Title VII. The Due Process Clause of the Fifth Amendment, the 

Equal Protection Clause of the Fourteenth Amendment, and to a lesser 

extent the Religion Clauses of the First Amendment prohibit discrimination by public employers on the basis of race, national origin, sex, or religion. These prohibitions are enforced against state and local governments by the Civil Rights Act of 1871, otherwise known as § 1983.12

This statute creates a private right of action for deprivation of federal 

rights under color of state law. Judicial decisions have recognized an 

analogous private right of action against federal officers for acts of discrimination in violation of the provisions of the Constitution that apply to 

the federal government.13

Another Reconstruction statute, the Civil Rights Act of 1866, otherwise known as § 1981,14 prohibits discrimination on the basis of race or 

national origin in employment contracts by public and private employers. 

Section 1981 was amended by the Civil Rights Act of 1991 to clarify the 

scope of its coverage. A separate provision, § 1981a,15 was added to provide damages to victims of discrimination on the basis of sex, religion, or 

disability. Section 1981a does not contain any substantive prohibition of 

its own; it simply adds a remedy for plaintiffs who can establish a claim 

of discrimination under Title VII, the ADA, or the Vocational Rehabilita-

 

12. Civil Rights Act of 1871, § 1, 42 U.S.C. § 1983 (2006). See also Martin A. 

Schwartz & Kathryn R. Urbonya, Section 1983 Litigation (Second Edition, Federal Judicial Center 2008).

13. Davis v. Passman, 442 U.S. 228 (1979).

14. Civil Rights Act of 1866, § 1, 42 U.S.C. § 1981 (2006).

15. 42 U.S.C. § 1981a (2006).
Introduction

5

tion Act.16 The substantive prohibition in § 1981 is still limited to discrimination on the basis of race or national origin.

By contrast, several other, more recently enacted statutes are limited 

to particular grounds of discrimination. Thus, the Equal Pay Act17 prohibits only discrimination on the basis of sex, and only in the narrow 

form of denial of equal pay for equal work; if men and women employed 

by the same employer in the same establishment do not do substantially 

equal work, the Equal Pay Act does not apply at all. The Age Discrimination in Employment Act18 prohibits another narrow form of discrimination: discrimination on the basis of age against individuals forty years 

old or older. The ADA is the latest act in this series. It generally prohibits 

discrimination against the disabled, including a requirement of reasonable accommodation, by private employers.19 Still other federal statutes 

have been interpreted to prohibit discrimination in employment, but only 

in the field with which such statutes are primarily concerned. The National Labor Relations Act20 and the Railway Labor Act,21 for instance, 

have been interpreted to prohibit discrimination by labor unions that represent employees in collective bargaining.22

Another group of federal statutes and a series of executive orders 

prohibit discrimination in employment by federal contractors and recipients of federal funds. These statutes prohibit only specific forms of discrimination. Title VI of the Civil Rights Act of 196423 prohibits discrimination on the basis of race or national origin by recipients of federal 

funds. Title IX of the Education Amendments of 197224 prohibits discrimination on the basis of sex by educational institutions that receive 

federal funds. Executive Order 11,246 returns to regulation solely of em-

 

16. 29 U.S.C. §§ 701–796i (2006).

17. Id. § 206(d).

18. Id. §§ 621–634. The Act formerly prohibited discrimination by private employers only against individuals at least 40 years old but less than 70 years old. It was amended by the Age Discrimination in Employment Amendments of 1986 to eliminate the upper limit on coverage. Pub. L. No. 99-592, 100 Stat. 3342 (1986), codified in 29 U.S.C. 

§§ 623, 630, 631 (2006).

19. 42 U.S.C. § 12112 (2006).

20. 29 U.S.C. §§ 151–169 (2006).

21. 45 U.S.C. §§ 151–163 (2006).

22. See infra text accompanying notes 999-1005.

23. 42 U.S.C. §§ 2000d-2004 (2006).

24. 20 U.S.C. §§ 1681–1685 (2006).
Major Issues in the Federal Law of Employment Discrimination

6

ployers who are federal contractors. It generally prohibits discrimination 

and requires affirmative action on the basis of race, national origin, sex, 

and religion. This executive order is enforced by the Office of Federal 

Contract Compliance Programs in the Department of Labor, which also 

enforces the obligations imposed upon federal contractors by the Rehabilitation Act. Because the executive order is not explicitly authorized by 

statute, disputes have arisen over its validity and scope but without ever 

resulting in a holding of invalidity. Disputes have also arisen over the 

constitutionality of the affirmative action plans required by the executive 

order, especially in the construction industry, but these too have never 

resulted in a holding of unconstitutionality. These disputes, like those 

over the statutory law of employment discrimination, have followed the 

lead of developments under Title VII, although often with significant 

variations.

The Rehabilitation Act,25 the predecessor to the ADA, prohibits exclusion of individuals with disabilities from federally assisted programs 

and requires affirmative action on their behalf by federal agencies and 

federal contractors. The ADA expanded upon the Rehabilitation Act by 

expressly covering discrimination in employment, regardless of the presence of federal funding.26 The ADA is expressly modeled on Title VII,

adopting much of the same language in the central prohibitions in the Act

and incorporating by reference the procedures and remedies under Title 

VII. The ADA’s major innovation involves an adaptation of the provision on reasonable accommodation of religious practices in Title VII. 

The ADA expands this provision, freed from constitutional restrictions 

on regulation of religion, to apply to disabilities. Employers must take 

affirmative steps, short of any undue hardship, to change the workplace 

to accommodate individuals with disabilities (although not to individuals 

who are only “regarded as” disabled). The ADA has also spawned repeated litigation and amending legislation on the issue of coverage: of 

what disabilities are severe enough, or perceived to be severe enough, to 

trigger the protections of the Act. The ADA Amendments Act has resolved these questions broadly in favor of coverage, minimizing the effects necessary to gain coverage, or in the case of individuals regarded as 

 

25. 29 U.S.C. §§ 701–796i (2006).

26. 42 U.S.C. §§ 12101-12213 (2006).
Introduction

7

disabled, eliminating such effects beyond the existence of an “impairment.”

The cumulative effect of these additional prohibitions against discrimination raises important questions of policy, particularly insofar as 

they alter the traditional common law rule of employment-at-will. Title 

VII began from the premise that an employer could hire or fire an employee for any reason so long as it was not a discriminatory reason—one

based on race, color, national origin, sex, or religion. But as the grounds 

of prohibited discrimination have expanded, the employer’s freedom to 

act has diminished, leading to a variety of practical problems in administering the laws against employment discrimination. Foremost among

these is the need to distinguish a discriminatory reason from a bad, but 

nevertheless nondiscriminatory, reason offered by an employer. An employee might be fired for a bad reason, one that does not make good 

business sense, but the employee has no claim unless that reason also is 

discriminatory. A further complication is that plaintiffs often join claims 

under the federal statutes with claims under state law, which might be 

based either on state fair employment practice laws or state exceptions to 

the doctrine of employment-at-will. These claims might or might not be 

sufficiently related to the federal claims to invoke the supplemental jurisdiction of the federal courts, but if they do, they have to be decided in 

a way that preserves the important differences between state and federal 

law. The abstract question of policy—how broad should the federal laws 

against employment discrimination be—quickly comes up against the 

practical problem of judicial administration—how to prevent those 

claims from becoming a general requirement of discipline or discharge 

only for good cause, completely overturning contrary state law. This 

monograph begins with the definition of prohibited discrimination and 

how it relates to permissible employer discretion.

9

I. Prohibitions and Defenses in Title VII

Title VII prohibits two forms of discrimination: disparate treatment and 

disparate impact. Employment practices result in disparate treatment (or 

intentional discrimination) if they are based in any way on a prohibited 

factor, such as race.27 The definition of disparate treatment has been codified by the Civil Rights Act of 1991 in the following terms: “an unlawful employment practice is established when the complaining party 

demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors 

also motivated the practice.”28 This definition can be broken down into 

three parts: (1) an employment practice (2) motivated at least in part by 

(3) a prohibited factor.

Claims of disparate treatment can, in turn, be subdivided into individual claims and class claims, which differ not in what is proved but in 

how it is proved. Both types of claims require proof that the employer 

was motivated by a prohibited factor. Individual claims tend to emphasize anecdotal evidence concerning the treatment of an individual plaintiff, while class claims usually rely on statistical evidence of treatment of 

an entire group of employees based on race or some other protected 

characteristic. Even so, this generalization admits of exceptions, which 

are discussed more fully in the sections that follow.

Claims of disparate impact do not require proof of motivation but 

only proof of neutral practices with discriminatory effects. Like the definition of disparate treatment, the elements of the theory of disparate impact were codified by the Civil Rights Act of 1991.29 These elements can 

be broken down into three parts. First, the plaintiff must prove that an 

employment practice “causes a disparate impact on the basis of race, color, religion, sex, or national origin.”30 If the plaintiff carries this initial 

burden, then the burden of proof, both of production and persuasion, 

shifts to the defendant to show that the disputed practice is “job related 

 

27. Thus, the Supreme Court has held that a union engaged in disparate treatment by 

refusing to pursue grievances alleging racial discrimination. Goodman v. Lukens Steel 

Co., 482 U.S. 656, 669 (1987).

28. § 703(m), 42 U.S.C. § 2000e-2(m) (2006).

29. § 703(k), 42 U.S.C. § 2000e-2(k) (2006).

30. § 703(k)(1)(A)(i), 42 U.S.C. § 2000e-2(k)(1)(A)(i) (2006).
Major Issues in the Federal Law of Employment Discrimination

10

for the position in question and consistent with business necessity.”31 If 

the defendant carries this burden, then the burden of proof shifts back to

the plaintiff to prove that “an alternative employment practice” exists 

with a smaller disparate impact.32 The precise formulation of these burdens of proof was a source of controversy in the debates over the Civil 

Rights Act of 1991, giving rise to charges that an earlier version of the 

Act promoted quotas.33 The exact language of the statute must therefore 

be examined quite closely.34 Ambiguities continue to surround the theory 

of disparate impact and, in particular, whether it represents a narrow or 

broad departure from the theory of disparate treatment.

Individual Claims of Disparate Treatment

McDonnell Douglas and Its Limits

The standard analysis of individual claims of disparate treatment was set 

forth by the Supreme Court in McDonnell Douglas Corp. v. Green.

35 The 

Court held that the plaintiff, who had alleged racial discrimination in hiring, had the burden of producing evidence 

(i) that he belongs to a racial minority; (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.36

If the plaintiff carries this burden, then the defendant has the burden of 

production “to articulate some legitimate, nondiscriminatory reason for 

the employee’s rejection.”37 If the defendant then carries this burden, the 

burden of production shifts back to the plaintiff “to show that [the de-

 

31. Id.

32. § 703(k)(1)(A)(ii), (C), 42 U.S.C. § 2000e-(k)(1)(A)(ii), (C) (2006).

33. President George H.W. Bush vetoed the Civil Rights Act of 1990, the predecessor to the Civil Rights Act of 1991, for this reason. Weekly Comp. Pres. Doc., Vol. 26, 

No. 43, at 1631 (Oct. 20, 1990). 136 Cong. Rec. S16,418 (daily ed. Oct. 22, 1992) (veto 

message of President Bush objecting to bill).

34. See infra text accompanying notes 141–87.

35. 411 U.S. 792 (1973).

36. Id. at 802.

37. Id.
I. Prohibitions and Defenses in Title VII

11

fendant’s] stated reason for [the plaintiff’s] rejection was in fact pretext.”38

The Court emphasized that this structure of shifting burdens of production was not the only way to prove an individual claim of disparate 

treatment.39 Disparate treatment can also be proved by direct evidence of 

discrimination, such as a statement by a supervisor that reveals an intent 

to treat an employee differently on the basis of race or some other protected characteristic. The narrowness of the holding in McDonnell Douglas has become apparent in subsequent cases. The Court has made clear 

that its structure of burdens of proof does not apply to reverse discrimination claims where, by definition, the plaintiff cannot prove that “he 

belongs to a racial minority.”40 Even when this structure does apply, it

shifts only the burden of production, not the burden of persuasion, to the 

defendant;41 and it imposes on the defendant only the burden of articulating a legitimate, nondiscriminatory reason,42 not of proving that the offered reason was closely related to performance on the job.43

The limited scope of McDonnell Douglas is apparent from the way 

in which the elements of the plaintiff’s prima facie case are defined. The 

first element, membership in a minority group, simply does not apply to 

claims of reverse discrimination.44 Some courts have tried to avoid this 

difficulty through the simple expedient of identifying whites as a “protected class” equivalent to a minority group.45 More recent decisions 

have abandoned the term “protected class” and require additional evidence of background circumstances supporting an inference of reverse 

discrimination against members of a majority group.

46

 

38. Id. at 804.

39. Id. at 802 & n.13. The Supreme Court has repeatedly made this point. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002); Furnco Constr. Corp. v. Waters, 438 

U.S. 567, 577 (1978).

40. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976). See also Parker v. 

Baltimore & Ohio R.R., 652 F.2d 1012, 1017-18 (D.C. Cir. 1981).

41. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981).

42. Board of Trustees v. Sweeney, 439 U.S. 24 (1978).

43. The employer’s burden of business justification under the theory of disparate 

impact, by contrast, is much heavier. See infra text accompanying notes 159–184.

44. McDonald, 427 U.S. at 279 n.6.

45. E.g., Chaline v. KCOH, Inc., 693 F.2d 477, 480 (5th Cir. 1982).

46. Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 851 (D.C. Cir. 2006), cert. 

denied, 549 U.S. 1166 (2007); Nagle v. Village of Calumet Park, 554 F.3d 1106, 1119 

(7th Cir. 2009).
Major Issues in the Federal Law of Employment Discrimination

12

Still others have adapted the defendant’s rebuttal case to claims of 

reverse discrimination by allowing evidence of a permissible affirmative 

action plan to serve as a legitimate, nondiscriminatory reason for the disputed decision.47 The Supreme Court seems to have accepted this last 

alternative when it suggested that the plaintiff attacking an affirmative 

action plan has the burden of proving that it is a pretext for discrimination.48 More recently, however, the Court has placed the burden of proof 

on the employer in a situation closely related to affirmative action. In 

Ricci v. DeStefano,

49 the Court held that the city of New Haven violated 

Title VII when it discarded the results of an examination for promotion 

within its fire department. The city made this decision because most 

blacks and Hispanics scored too low to be eligible for promotion, a reason that the Court found to be inadequate because the city had failed to 

show that it had “a strong basis in evidence of an impermissible disparate 

impact.”50 This decision seems to make any consideration of race, if it is 

permissible at all, dependent upon a sufficiently strong showing by the 

employer.

In any event, the scope of permissible affirmative action cannot easily be reconciled with proof of intentional discrimination simply by modifying the framework of shifting burdens of production in McDonnell 

Douglas. These burdens leave open the possibility of proving intentional 

discrimination by other means, including direct evidence that the employer relied on a prohibited characteristic.51 No better direct evidence 

can be found than proof that the employer relied on an affirmative action 

plan which, by definition, involves consideration of an otherwise prohibited characteristic. Although the employer must be given the opportunity 

 

47. E.g., Moran v. Selig, 447 F.3d 748, 753 (9th Cir. 2006) (accepting as a “legitimate non-discriminatory reason” defendant’s attempt “to remedy in part its past discriminatory conduct); Lilly v. City of Beckley, 797 F.2d 191, 194–96 (4th Cir. 1986).

48. Johnson v. Transp. Agency, 480 U.S. 616, 626 (1987).

49. 129 S. Ct. 2658 (2009).

50. Id. at 2677.

51. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985) (age discrimination case); Enlow v. Salem-Keizer Yellow Cab Co., Inc., 389 F.3d 802, 812 (9th Cir. 

2004), cert. denied, 544 U.S. 974 (2005) (age discrimination case); Griffith v. City of Des 

Moines, 387 F.3d 733, 736 (8th Cir. 2004) (national origin case); Ramsey v. City of Denver, 907 F.2d 1004, 1007–08 (10th Cir. 1990), cert. denied, 506 U.S. 907 (1992) (sex 

discrimination case); EEOC v. Alton Packaging Corp., 901 F.2d 920, 923 (11th Cir. 

1990) (race discrimination case).
I. Prohibitions and Defenses in Title VII

13

to present evidence that its affirmative action plan is permissible, this 

evidence does not easily fit within the framework of McDonnell Douglas; affirmative action is better characterized as a legitimate discriminatory reason than as a legitimate nondiscriminatory reason. Sensing this, 

most courts have not relied heavily on McDonnell Douglas to resolve 

claims of reverse discrimination.

Other cases also fall outside the literal terms of McDonnell Douglas, 

among them claims involving loss of a job, either from firings or layoffs.

Excluding disability claims, the majority of employment discrimination 

cases are filed by employees who have lost their jobs.52 Two of the four 

elements of the plaintiff’s prima facie case are rarely significant in most 

of these cases. The second element, that the plaintiff has the minimal 

qualifications for the job, almost always is satisfied; otherwise, the plaintiff would not have gotten the job in the first place. Even more than hiring cases, discharge cases focus on the qualifications above the minimum 

for the job and the plaintiff’s failure to satisfy them. Likewise, the fourth 

element, that the position remained open and the employer continued to 

look for applicants with the plaintiff’s qualifications, often is entirely 

irrelevant. As the layoff cases illustrate, the continued existence of the 

plaintiff’s position does not have any bearing at all on whether the plaintiff was discharged for a discriminatory reason.

These deficiencies in McDonnell Douglas have not gone unnoticed 

by the federal courts. They have substituted various alternative elements, 

such as satisfactory performance until the incident giving rise to the discharge,53 departure from the general policies on discipline or discharge 

usually followed by the employer,

54 or different treatment of someone 

 

52. John J. Donohue III & Peter Siegelman, The Changing Nature of Employment 

Discrimination Litigation, 43 Stan. L. Rev. 983, 1015 (1991); Laura Beth Nielsen, Robert 

L. Nelson & Ryon Lancaster, Uncertain Justice: Litigating Claims of Employment Discrimination in the Contemporary United States 14 (Apr. 16, 2008) (unpublished manuscript available at http://ssrn.com/abstract=1093313) (published as Individual Justice or

Collective Legal Mobilization? Employment Discrimination in the Post-Civil Rights 

United States, 7 J. Emp. Leg. Stud. 175 (2010)).

53. Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 394 (7th Cir. 2010); Sorbo v. 

United Parcel Serv., 432 F.3d 1169, 1173 (10th Cir. 2005).

54. Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000); 

Scales v. Slater, 181 F.3d 703, 711 (5th Cir. 1999); Salazar v. Wash. Metro. Area Transit 

Auth., 401 F.3d 504, 509 (D.C. Cir. 2005).
Major Issues in the Federal Law of Employment Discrimination

14

from another race or other group.55 This last alternative does not require 

proof that the plaintiff was replaced by someone from a different group, 

as the Supreme Court itself has held,56 although that fact might strengthen the plaintiff’s claim. It only requires proof that employees like the 

plaintiff were subject to stricter requirements than other employees, 

which is, of course, just another way of stating the ultimate issue of discrimination. This last alternative replaces the entire structure of shifting 

burdens of production, not just a single element of the plaintiff’s prima 

facie case.

The most common adaptation of McDonnell Douglas has been for 

discharge, layoff, or discipline cases. In these cases, the circuit courts

have required evidence that the plaintiff’s job performance met the employer-defendant’s “legitimate expectations.”

57 This formulation replaces 

evidence “that, despite his qualifications, he was rejected,” which is 

more suitable for hiring and promotion cases. Where the circuit courts 

have tried to further refine McDonnell Douglas, the Supreme Court has 

been more concerned with limiting its overall significance. The lower 

federal courts have tried to make more of the burden of proof than has 

the Supreme Court in order to resolve the many cases that come before 

them. Yet the ease with which each party can satisfy its burden has left 

most cases to be resolved on the issue of pretext, which is just another 

way of framing the ultimate issue of discrimination. The Supreme Court, 

not faced with the need to decide a large number of routine cases, has 

emphasized the limited significance of all aspects of the burden of production. The Court has said repeatedly that the burden of persuasion always remains with the plaintiff,58 that the employer’s burden of articulat-

 

55. Montgomery, 626 F.3d at 394; Clay v. United Parcel Serv., Inc., 501 F.3d 695, 

703 (6th Cir. 2007); Phillip v. Ford Motor Co., 413 F.3d 766, 768 (8th Cir. 2005); Hill v. 

Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004) (en banc).

56. O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 311–13 (1996) (age

discrimination).

57. See, e.g., United States v. Brennan, __ F.3d __, __, Nos. 08-5171-cv (L), 08-

5172-cv (XAP), 08-5375-cv (XAP), 08-5149-cv (CON), 08-4639-cv (CON), 2011 WL 

1679850, at *20 (2d Cir. May 5; as corrected June 2, 2011); Hill, 354 F.3d at 285; 

Kosereis v. Rhode Island, 331 F.3d 207, 212-213 (1st Cir. 2003).

58. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); Bd. of Trustees v. Sweeney, 439 U.S. 24, 25 (1978); Furnco Constr. Corp. v. Waters, 438 U.S. 567, 

57–78 (1978).
I. Prohibitions and Defenses in Title VII

15

ing a legitimate nondiscriminatory reason is a light one,59 that the plaintiff is under no obligation to specifically plead the elements of a prima 

facie case,60 and that most cases should be resolved on the factual issue 

of whether discrimination occurred instead of the legal issue of whether 

the burden of production has been satisfied.61

As the next section elaborates in detail, the plaintiff must do more 

than just discredit the defendant’s offered legitimate, nondiscriminatory 

reason. The plaintiff must prove “both that the reason was false, and that 

discrimination was the real reason.”62 The Supreme Court considered one 

way of making such proof—the theory that a manager was the “cat’s 

paw” of a lower-level supervisor—in Staub v. Proctor Hospital.

63 Although that case concerned a claim under the Uniformed Services Employment and Reemployment Rights Act (USERRA), the Court relied on 

precedents under Title VII to analyze the claim by a reservist that he was 

discriminatorily discharged because of his military obligations. The 

Court held that the employer remained liable under USERRA even 

though the principal evidence of discrimination implicated the plaintiff’s 

immediate supervisors and not the manager who made the ultimate decision to fire him. The manager’s reliance on other information and on his 

own judgment did not constitute a “superseding cause” that negated the 

influence of the discriminatory actions of the plaintiff’s immediate supervisors.64 As it has in other decisions, the Supreme Court recognized 

 

59. Burdine, 450 U.S. at 254–55; Furnco, 438 U.S. at 579–80.

60. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 506–07 (2002). Nevertheless, the 

Court required more precise pleading in a case involving claims of unconstitutional discrimination. Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). The defendants were high government officials who asserted a defense of qualified immunity. Partly because they 

would be burdened by ongoing discovery, the Court required the complaint to “contain 

facts plausibly showing” that the defendants had engaged in prohibited discrimination. Id.

at 1952.

61. Ash v. Tyson Foods, Inc.546 U.S. 454 (2006) (per curiam); Anderson v. Bessemer City, 470 U.S. 564, 573 (1985); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 

U.S. 711, 715 (1983).

62. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993). See also Van Zant v. 

KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (quotation omitted) (holding 

plaintiff must present evidence to show that “[discrimination] was the real reason for the 

discharge”).

63. 131 S. Ct. 1186 (2011).

64. Id. at 1190. The “cat’s paw” theory of liability originated in Shager v. Upjohn 

Co., 913 F.2d 398, 405 (7th Cir. 1990). Staub, 131 S. Ct. at 1190 n.1.
Major Issues in the Federal Law of Employment Discrimination

16

the “cat’s paw” theory as one of several different ways of proving discrimination.

McDonnell Douglas and the Right to Jury Trial

In St. Mary’s Honor Center v. Hicks,

65 the Supreme Court addressed the 

issue of how much evidence the plaintiff needed to survive a motion for 

summary judgment or for directed verdict, an issue of continuing significance in employment discrimination cases. Although this case was tried 

to a judge, it raised the question whether the plaintiff could prevail simply by discrediting the legitimate nondiscriminatory reason offered by the 

defendant. Hicks, a supervisor of the St. Mary’s Honor Center, a halfway 

house operated by a state prison system, alleged that he had been discharged because he was black. In its defense, the employer offered as its 

legitimate, nondiscriminatory reason the fact that the subordinates supervised by Hicks had violated the rules for operation of the center. The district court rejected this reason because Hicks was the only supervisor 

disciplined even though other supervisors had allowed violations of the 

center’s rules. Nevertheless, the court found an absence of discrimination. The court concluded that the real reason for Hicks’s discharge was 

neither the reason offered by the employer nor his race but his supervisor’s personal dislike for him.

The Supreme Court ultimately agreed with this conclusion, holding 

that the plaintiff only raised an issue of pretext by discrediting the reason 

offered by the defendant. The trier of fact, in this case the district judge, 

was free to decide that Hicks had not established pretext based on all the 

evidence in the record as a whole.66 This holding accords with previous 

decisions placing the burden of persuasion always on the plaintiff, as 

well as with decisions reducing the burden on the defendant to offering a 

legitimate nondiscriminatory reason, leaving most cases to be decided on 

the issue of pretext. All of these previous decisions imply that the defendant can prevail despite the fact that its offered reason for discharge 

turned out to be false.

After St. Mary’s Honor Center, proof of pretext requires more than 

simply discrediting the defendant’s offered reason. It also requires proof 

that the defendant’s motivating reason was discriminatory. This require-

 

65. 509 U.S. 502 (1993).

66. Id. at 510–12.
I. Prohibitions and Defenses in Title VII

17

ment is sometimes framed as proof of “pretext plus,” but it is more clearly and accurately framed as evidence of “discrediting plus.” Once the 

plaintiff proves pretext, by whatever means, the plaintiff need not prove 

any “plus” at all. Proof of pretext is proof of illegal motivation, which 

can be established by relying upon circumstantial evidence in addition to 

evidence discrediting the defendant’s offered reason. The Supreme Court 

confirmed this conclusion in Reeves v. Sanderson Plumbing Products, 

Inc.,

67 where the plaintiff presented sufficient evidence to support a finding of discrimination by relying upon the evidence establishing a prima 

facie case under McDonnell Douglas and by discrediting the defendant’s 

offered reason.68

Neither of these Supreme Court decisions gives much guidance to 

the lower federal courts in expeditiously deciding the vast bulk of employment discrimination cases, however. On the contrary, in Reeves, the 

Court cautioned against prematurely resolving these cases without considering all of the evidence favorable to the plaintiff.69 Following the 

lead of decisions approving the use of summary judgment,70 however, 

the federal courts have closely examined the plaintiff’s evidence to determine whether it supports a reasonable inference of intentional discrimination.71 Nevertheless, the practice in different circuits has been highly 

variable: Some courts recognize that these cases should rarely be taken 

from the jury, because they involve questions of intent;72 other courts 

allow judges greater leeway to grant summary judgment or judgment as a 

matter of law.

73

 

67. 530 U.S. 133 (2000).

68. Id. at 147–49.

69. Id. at 150–54.

70. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Matsushita Elec. Indus. Co. v. 

Zenith Radio Corp., 475 U.S. 574, 597–98 (1986).

71. Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8–10 (1st Cir. 1990); 

Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1436–39 (9th Cir. 1990); Wright v. Murray Guard, Inc., 455 F.3d 702, 706-15 (6th Cir. 2006); Weihaupt v. Am. Med. Ass’n, 874 

F.2d 419, 428–30 (7th Cir. 1989); Meiri v. Dacon, 759 F.2d 989, 997–98 (2d Cir.), cert. 

denied, 474 U.S. 829 (1985).

72. Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998); Sheridan v. E.I. 

DuPont de Nemours, 100 F.3d 1061, 1071 (3d Cir. 1996) (en banc), cert. denied, 521 

U.S. 1129 (1997).

73. Taylor v. Va. Union Univ., 193 F.3d 219, 230–34 (4th Cir. 1999) (en banc), cert. 

denied, 528 U.S. 1189 (2000); Walton v. Bisco Indus., Inc., 119 F.3d 368, 370 (5th Cir. 

1997).
Major Issues in the Federal Law of Employment Discrimination

18

A decision on summary judgment now denies the plaintiff both a 

trial and a decision by a jury, which can award damages in addition to 

any back pay awarded by the court.74 The same is true of directed verdicts and judgments notwithstanding the verdict (or judgments as a matter of law in the current terminology). These procedural devices allow 

trial judges to retain control over which cases go to the jury by determining whether the plaintiff’s burden of production has been satisfied. This 

burden is rarely met simply by making out a prima facie case under 

McDonnell Douglas; the plaintiff must also present sufficient evidence 

on the issue of pretext. As St. Mary’s Honor Center and Reeves have 

recognized, this burden can be satisfied by discrediting the reason offered by the defendant. Moreover, the plaintiff gets the benefit of all of 

the favorable evidence in the record. As Justice Ginsburg observed in her 

concurring opinion in Reeves, the plaintiff will usually meet the burden 

of producing sufficient evidence to have the case go to the jury,75 but as 

the Court made clear, the possibility remains that the plaintiff will fail to 

meet this burden even after discrediting the defendant’s offered reason.

If the plaintiff’s burden of production is satisfied, then the case goes 

to the jury and the jurors need not be instructed that the burden is satisfied.76 By definition, these burdens have been met by the parties in all 

cases that go to the jury. Jurors need to be instructed on the burden of 

persuasion, but the instruction need only state that that burden rests always with the plaintiff in proving intentional discrimination. In some 

circuits, the jury must also be instructed on the inferences that may be 

drawn from findings that a plaintiff has made out a prima facie case and 

has discredited the defendant’s offered “legitimate, nondiscriminatory 

reason.”77 Conversely, some circuits have also allowed, but not required, 

a jury instruction on the employer’s business judgment: that the jury 

need not agree with the employer’s offered reason to find that it is non-

 

74. 42 U.S.C. § 1981a(b), (c) (2006).

75. Reeves, 530 U.S. at 154 (Ginsburg, J., concurring).

76. The Second Circuit has been particularly insistent in warning of the dangers of 

importing phrases such as “prima facie” case into the instructions to the jury. E.g., Cabrera v. Jakabovitz, 24 F.3d 372, 380–81 (2d Cir. 1994); Hagelthorn v. Kennecott Corp., 710 

F.2d 76, 85 (2d Cir. 1983).

77. Compare Smith v. Borough of Wilkinsburg, 147 F.3d 272, 280 (3d Cir. 1998) 

(requiring such an instruction), with Achor v. Riverside Golf Club, 117 F.3d 339, 341 

(7th Cir. 1997) (requiring only instruction on plaintiff’s burden of persuasion).
I. Prohibitions and Defenses in Title VII

19

discriminatory.78 This is as far as McDonnell Douglas and the cases following it can take the court in framing jury instructions.

Mixed-Motive and After-Acquired Evidence Cases

In mixed-motive cases, the task of instructing the jury becomes more 

complicated than it is in cases in which the only disputed issue is pretext. 

Mixed-motive cases involve evidence that supports a finding that the 

defendant acted both for a discriminatory reason and for a legitimate reason in making an employment decision adverse to the plaintiff. These 

cases do not fit easily into the framework established by McDonnell

Douglas, which presupposes that the employer’s decision was entirely 

based either on a legitimate reason or on a discriminatory reason but not 

on both. The word “pretext,” as it is commonly understood, means that 

the offered reason for a decision is not the real reason. The offered reason only hides the real reason; it does not accompany it. Mixed-motive 

cases are those in which both reasons play a role. It is therefore necessary 

to revise the ordinary understanding of pretext to make mixed-motive 

cases fit within the framework of McDonnell Douglas.

In Price Waterhouse v. Hopkins,

79 the Supreme Court began this task 

by holding that the defendant bears the burden of production and persuasion on the mixed-motive issue. In particular, after the plaintiff has 

proved that a prohibited reason was a substantial or motivating factor in 

the disputed employment decision, the defendant has the burden of proving that the same decision would have been made for an entirely legitimate reason.80 The defendant’s burden also includes the burden of persuasion, defined as the usual burden in civil cases of proof by a 

preponderance of the evidence.

81 Both of these issues—the existence of a 

prohibited reason and the existence of a legitimate reason—were assigned to the violation stage of the case, not the remedy stage of the 

 

78. E.g., Kelley v. Airborne Freight Corp., 140 F.3d 335, 350–51 & n.6 (1st Cir. 

1998). Along the same lines, some courts have held that the “same-actor” inference is not 

mandatory: that the fact that the same person who hired the plaintiff also fired him does 

not require judgment for the employer. Wexler v. White’s Fine Furniture Inc., 317 F.3d 

564, 572–74 (6th Cir. 2003) (citing cases).

79. 490 U.S. 228 (1989).

80. Id. at 249–50 (Brennan, J., plurality opinion); id. at 259–60 (White, J., concurring in judgment).

81. Id. at 249.
Major Issues in the Federal Law of Employment Discrimination

20

case.82 As a consequence, if the defendant established a mixed-motive 

defense, the plaintiff was not a prevailing party and so could not obtain 

declaratory or prospective injunctive relief or an award of attorney’s 

fees.83

In the Civil Rights Act of 1991, Congress largely followed the Supreme Court in shifting the burden of production and persuasion to the 

defendant in mixed-motive cases. This legislation applies only to mixedmotive cases under Title VII, and as the Supreme Court has made clear, 

Price Waterhouse does not apply to mixed-motive cases under any other 

employment discrimination law.84 Price Waterhouse survives only to the 

extent that Congress adopted and modified it under Title VII. The modifications are twofold: First, the Act defines disparate treatment as requiring the plaintiff to prove only that a discriminatory reason was a “motivating factor,” not that it was a “substantial factor.”85 Whatever the 

difference in meaning of these phrases, the law is now settled in favor of 

“motivating factor.” Second, the mixed-motive defense is now assigned 

firmly to the remedy stage of the case. The definition of disparate treatment specifies what the plaintiff must prove in order to establish a violation of the statute. The mixed-motive defense only imposes a limitation 

upon remedies. The general remedial section of Title VII now contains a 

subsection that relieves the defendant of liability for compensatory relief 

upon proof that the defendant “would have taken the same action in the 

absence of the impermissible motivating factor.” Even if the defense is 

established, the court may still award declaratory and prospective injunctive relief and attorney’s fees.86

Assigning the mixed-motive defense to the remedy stage also allows 

the defense itself to be more clearly distinguished from the defendant’s 

rebuttal burden under McDonnell Douglas. The defense that the employment decision would have been adverse to the plaintiff anyway arises only after a finding of discrimination, and for that reason, the burden 

of production and persuasion shifts from the plaintiff to the defendant. 

By contrast, the defense under McDonnell Douglas arises after the plain-

 

82. Id. at 244–45 n.10 (Brennan, J., plurality opinion).

83. § 706(k), 42 U.S.C. § 2000e-5(k) (2006); see Hensley v. Eckerhart, 461 U.S. 

424, 433 (1983).

84. Gross v. FBL Fin. Servs., 129 S. Ct. 2343, 2348-52 (2009). 

85. § 706(g)(2)(B), 42 U.S.C. § 2000e-5(g)(2)(B) (2006).

86. § 706(g)(2)(B)(i), 42 U.S.C. § 2000e-5(g)(2)(B)(i) (2006).
I. Prohibitions and Defenses in Title VII

21

tiff has made out a prima facie case, which does not amount to a finding 

of discrimination, and it shifts only the burden of production to the defendant, not the burden of persuasion.87

In cases tried to a jury, these theoretical complications have practical 

consequences. Since the shifting burdens of production under McDonnell 

Douglas only address the issue whether the case gets to the jury, and then 

only rarely, the jury need not be instructed on these burdens at all. That 

leaves the shifting burdens of persuasion on the mixed-motive defense, 

which do need to be explained to the jury.88 Again, the jury needs to be 

instructed on this defense only if the defendant carries its burden of production: the burden of producing evidence from which a reasonable inference can be drawn that it would have reached the same decision for 

legitimate reasons. Only if the defendant meets this burden is it necessary 

to instruct the jury on the shifting burdens of persuasion.

These burdens can be explained by defining the issue of violation—

on which the plaintiff has the burden of persuasion—in terms of the defendant’s actual decision-making process, and defining the mixed-motive 

defense—on which the defendant has the burden of persuasion—in terms 

of a hypothetical decision-making process free of discrimination. If the 

plaintiff proves by a preponderance of the evidence that a prohibited reason, such as race or sex, was a motivating factor in the defendant’s actual 

decision-making process, then a violation of Title VII has been established. If, however, the defendant proves by a preponderance of evidence 

that the decision would have been the same even if the decision-making 

process had been entirely free from discrimination, then the plaintiff 

cannot be granted any compensatory relief.

Even this example understates the complexity of existing law. Despite amendments to Title VII that clarified the treatment of mixedmotive cases, some decisions still insist on assigning the mixed-motive 

defense to the liability stage of litigation and not the remedy stage. These 

decisions follow the lead of the Supreme Court in Price Waterhouse, 

which was decided before Title VII was amended by the Civil Rights Act 

 

87. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978); Tex. Dep’t of Cmty. 

Affairs v. Burdine, 450 U.S. 248, 253–56 (1981).

88. For model instructions on this issue, and other issues of discrimination, see 3C 

Kevin F. O’Malley, Jay E. Grenig & Hon. William C. Lee, Fed. Jury Prac. & Instr. ch. 

170 (5th ed. & 2011 Supp.).
Major Issues in the Federal Law of Employment Discrimination

22

of 1991 to include the statutory provision quoted earlier.

89 Although this 

decision did not result in a majority ruling, the plurality opinion of Justice Brennan and the separate opinions of Justice White and Justice 

O’Connor placed the mixed-motive issue in the liability phase of the case 

rather than the remedy phase. These opinions placed the burden on the 

plaintiff of proving that a discriminatory reason “played a motivating 

part” or was “a substantial factor” in the disputed employment decision.90

If the plaintiff made this showing, then the defendant could entirely escape liability by proving that the same decision adverse to the plaintiff 

would have been made in the absence of the discriminatory reason.91

This result differs significantly from what the literal terms of Title VII 

now seem to require. Title VII now provides for the recovery of injunctive relief and attorney’s fees upon proof by the plaintiff that a prohibited 

reason was a motivating factor in the defendant’s decision, regardless of 

proof by the defendant that it would have reached the same decision entirely for legitimate reasons. Price Waterhouse would not allow any relief at all in this situation.

Some decisions have distinguished mixed-motive cases from pretext 

cases based on the nature of the plaintiff’s evidence of discrimination, 

holding that a plaintiff under Title VII can take advantage of the new 

provisions for mixed-motive cases only if the plaintiff relies on “direct” 

evidence of discrimination.92 If the plaintiff relies on circumstantial evidence, the case must be analyzed under McDonnell Douglas, and the 

burden of proof on the issue of pretext remains entirely on the plaintiff. 

The Supreme Court rejected these decisions in Desert Palace, Inc. v. 

Costa,

93 holding that a jury could properly be instructed that the burden 

of proof shifts to the employer in mixed-motive cases, even if the plaintiff presented only circumstantial evidence of discrimination.

 

89. See supra text accompanying notes 85-86.

90. Price Waterhouse, 490 U.S. at 250 (Brennan, J., plurality opinion) (“played a 

motivating part”); id. at 259 (White, J., concurring in judgment) (“a substantial factor”); 

id. at 265 (O’Connor, J., concurring in judgment) (“a substantial factor”).

91. Id. at 252 (Brennan, J., plurality opinion); id. at 259–60 (White, J., concurring in 

judgment); id. at 267–68 (O’Connor, J., concurring in judgment).

92. E.g., Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 580–83 (1st Cir. 

1999) (citing cases).

93. 539 U.S. 90 (2003).
I. Prohibitions and Defenses in Title VII

23

The Court found the contrary decisions problematic for several reasons. First, under Title VII, Congress made the plaintiff’s proof that a 

discriminatory reason was a “motivating factor” sufficient to resolve the 

issue of liability and to shift the burden of proof to the defendant. Congress did not make the nature of the plaintiff’s evidence decisive but only 

the conclusions drawn from that evidence. Moreover, any attempt to 

draw a distinction between direct and circumstantial evidence transforms 

a question of degree—how closely evidence is connected to a fact in dispute—into a question of kind—whether it is connected closely enough to 

be “direct.” As the cases on “stray remarks” illustrate, issues of interpretation, context, and countervailing evidence might always intervene between even the most compelling evidence and a finding of discrimination.94

Even putting these complications to one side, however, existing law 

is still far from simple. When the issue of mixed motives is properly 

raised, the court must instruct the jury on the niceties of the burden of 

persuasion on two closely related issues: whether the defendant’s decision was motivated by a prohibited reason and whether it would have 

been the same in the absence of a prohibited reason. A decision under the 

ADEA illustrates how complicated these issues can be. McKennon v. 

Nashville Banner Publishing Co.

95 involved a defense of “after acquired” 

evidence, in which an employer discovered, after the plaintiff was discharged and filed a claim of discrimination, that she had misused confidential documents. This conduct would ordinarily have been grounds for 

discharge, but it was unknown to the employer when the plaintiff was 

discharged. Despite the employer’s concession that it had engaged in age 

discrimination, the district court granted summary judgment for the employer. The court of appeals affirmed the decision, but the Supreme 

Court reversed, holding that the “after acquired” evidence went only to 

the issue of remedy and limited back pay to the period before such evidence was discovered. In McKennon, the actual decision was based solely on a discriminatory reason, and the hypothetical decision solely on a 

legitimate reason. The technicalities of jury instructions did not arise in 

McKennon because the case came up on summary judgment. Neverthe-

 

94. E.g., Indurante v. Local 705, Int’l Bhd. of Teamsters, 160 F.3d 364, 367 (7th Cir. 

1998); Walden v. Georgia-Pacific Corp., 126 F.3d 506, 513–14 (3d Cir. 1997).

95. 513 U.S. 352 (1995).
Major Issues in the Federal Law of Employment Discrimination

24

less, separating the case into issues of violation and remedy makes a start 

toward clarifying the law.

As the law has developed for individual claims of disparate treatment, the plaintiff’s burden of proving pretext under McDonnell Douglas

has often been decisive. Either the plaintiff fails to present sufficient evidence of pretext to survive a motion for summary judgment or a motion 

for judgment as a matter of law, or the case goes to the jury. If the latter, 

the jury need only be instructed under McDonnell Douglas that the plaintiff bears the burden of persuasion on this issue. In mixed-motive cases, 

however, the burden of persuasion is divided between the plaintiff and 

the defendant. This division has created problems, both in defining when 

a case genuinely raises a question of mixed motives and, when it does, in 

instructing the jury appropriately.

Class Claims of Disparate Treatment

Strictly speaking, the distinction between individual claims and class

claims is one of procedure rather than substance. It concerns how plaintiffs are joined in a single action, either individually or as part of a class, 

rather than the kind of claims that have been joined together. The standard procedural form for class claims is either a class action by private 

plaintiffs under Federal Rule of Civil Procedure 23 or a pattern-orpractice action by public officials under statutory authority. Some of

these claims have been litigated as a series of individual claims of intentional discrimination, following the structure of proof in McDonnell 

Douglas. Conversely, a few individual cases have been litigated by presenting statistical evidence of intentional discrimination or disparate impact.96 Yet substantive theories of liability have tended to correspond to 

the procedural forms of action: Individual theories of liability are mostly 

to be found in individual actions, and class-wide theories of liability, relying mainly on statistics or the theory of disparate impact, have been 

found mostly in class actions and pattern-or-practice actions.

The class claims that most closely resemble individual claims are 

those of disparate treatment, since both kinds of claims require proof of 

intentional discrimination. The means of proving intentional discrimination, however, is very different in class claims of disparate treatment. 

 

96. E.g., Connecticut v. Teal, 457 U.S. 440, 443 (1982); Kovacevich v. Kent State 

Univ., 224 F.3d 806, 831 (6th Cir. 2000).
I. Prohibitions and Defenses in Title VII

25

These claims invariably require evidence in the form of class-wide statistics, often supplemented by evidence of individual instances of disparate 

treatment. Using statistics to prove disparate treatment is similar to using 

them to prove disparate impact,97 but the extent of a group’s underrepresentation in the employer’s workforce must usually be greater to support 

an inference of disparate treatment than it must be to support an inference of disparate impact.

The variety of statistical evidence poses more immediate choices for 

legal doctrine. Judges and juries cannot be left entirely on their own in 

evaluating statistical evidence, yet they also must not be hemmed in by 

simplistic quantitative analysis of statistical evidence. Some lower court 

decisions, unfortunately, have confused judicial analysis of statistical 

evidence with formulation of categorical rules of law. The latter is not 

appropriate for the former. The Supreme Court has clearly recognized 

this point and has refused to offer any definitive method of analyzing 

statistical evidence. In cautioning that statistical evidence comes in many 

forms and is always rebuttable, the Court has said that the force of such 

evidence “depends on all of the surrounding facts and circumstances.”98

The methods the Supreme Court has endorsed are suggestive and instructive, not exhaustive; they should not be taken to exclude the use of alternative methods of evaluating statistical evidence upon a proper showing. 

The Supreme Court has offered two models of analysis, and the lower 

federal courts have endorsed several variations on these models.

The first, and simpler, of the two models of statistical analysis was 

endorsed by the Supreme Court in International Brotherhood of Teamsters v. United States.

99 This model of statistical inference—or “the inexorable zero” as it was referred to by the court of appeals—concerns extreme disparities in the treatment of workers from different groups. 

Teamsters was a “pattern-or-practice” case, so called because the government alleged that the Teamsters Union and various trucking companies had engaged in a systematic practice of denying better-paying jobs 

to blacks and Hispanics. These were “over-the-road” jobs involving driving between major cities, for which the defendants employed few, if any, 

 

97. See infra text accompanying notes 151-58.

98. Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 340 (1977). For a decision that makes this point, in particular, about the “5 percent significance level,” see Kadas v. MCI Systemhouse Corp., 255 F.3d 359, 362 (7th Cir. 2001).

99. 431 U.S. 324, 342 n.23 (1977).
Major Issues in the Federal Law of Employment Discrimination

26

members of minority groups. Almost all the blacks and Hispanics were 

employed instead as “city drivers” and “servicemen,” working within a 

single metropolitan area. Although the opinion compared the proportion 

of minority employees in these different positions, the decisive comparison was between the proportion of minority employees who were overthe-road drivers and the proportion of minorities in the general population. The latter figure, the Court made clear, was relevant only because it 

was an adequate approximation of the proportion of minorities in the relevant labor market.100

Such a rough approximation—and the general commonsense approach taken by the Supreme Court—are the distinguishing features of 

the simple model of statistical inference. Everything depends upon the 

disparity in treatment being large enough to dispel any lingering doubts 

from imprecise estimates. The Court simply assumed that the proportion 

of minorities in the general population would approximate the proportion 

in the labor market, an assumption only partly confirmed by the statistics 

on hiring for city driver and serviceman positions.101 Any remaining 

doubts about this assumption were overcome by the enormous disparity 

represented by “the inexorable zero” of minorities among over-the-road 

drivers. It was highly unlikely that any permissible selection procedure 

would result in almost no blacks or Hispanics in the position of line driver. Accordingly, the Court found no need to rely on even elementary tests 

of statistical significance.

Few cases from recent years present the stark disparities found in 

Teamsters. Under the influence of Title VII, most employers have entirely abandoned explicit discriminatory practices with obvious effects on 

large numbers of employees. Consequently, the disparities revealed by 

statistical evidence have become narrower, and the assessment of the 

evidence has become subject to greater and more technical disputes. Expert witnesses are essential for the plaintiffs in most of these cases, and 

often for the defendant as well. Although Teamsters was decided without 

the benefit of expert testimony, its simple model of statistical inference 

was based on a more sophisticated model, which consists of three separate steps: first, an examination of the presence or treatment of a minority 

in the relevant labor market; second, a determination of how the same 

 

100. Id. at 337 n.17.

101. Id. at 339 n.20, 342 n.23.
I. Prohibitions and Defenses in Title VII

27

group is treated by the defendant employer; and third, a comparison of 

the figures generated by the first two steps to determine whether they 

support an inference of intentional discrimination.

The second, and more complex, model for evaluating statistical evidence was used in Hazelwood School District v. United States.

102 That 

case concerned a claim of racial discrimination in hiring teachers by a 

public school district in the suburbs of St. Louis, Missouri. The Court 

held that the appropriate statistics compared the racial composition of the 

labor market with the racial composition of the group hired by the school 

district, for the period after the effective date of Title VII and by means 

of tests for statistical significance.

Hazelwood held that the labor market must be defined to include only persons with undisputed qualifications for the job—in this case, those 

with state teaching certificates—and only persons in the geographical 

area surrounding the place of employment—here, part or all of the St. 

Louis metropolitan area. The first issue, undisputed qualifications, determines the relevance of general population figures as evidence of the 

racial composition of the labor market. If no qualifications are required 

for the job, or only qualifications that are easily acquired, then general 

population figures provide an adequate approximation of the racial composition of the labor market.103 Otherwise, statistics confined to those 

qualified for the job are necessary. Whether a qualification is necessary 

for the job, of course, is often a matter of dispute, so that the appropriate 

definition of the labor market depends upon what employment practices 

are claimed to be discriminatory and what qualifications, like the state 

teaching certificate in Hazelwood, are undisputed.

The second issue, the geographic definition of the labor market, was 

discussed by the Court at greater length, although it was not resolved. 

The St. Louis City School District had attempted to maintain a ratio of 

50% black teachers. The United States, on behalf of black applicants for 

employment, argued that teachers in the St. Louis city schools should be 

included in the labor market, thereby increasing the proportion of blacks, 

because they could quit their jobs in the city and commute to the Hazelwood schools in the suburbs. The school district argued that these teachers should be excluded from the labor market because the affirmative 

action policy of the St. Louis City School District had depleted the pool 

 

102. 433 U.S. 299 (1977).

103. Id. at 308 & n.13.
Major Issues in the Federal Law of Employment Discrimination

28

of black applicants from which suburban school districts could hire 

teachers. These arguments are typical of the efforts of litigants to define 

the labor market so that it favors their positions.

Another issue left unresolved in Hazelwood was the use of applicantflow statistics: the proportion of a group among all applicants, which is 

then compared to the proportion of the same among all those hired. Applicant-flow statistics can be used instead of general or qualified population statistics for a particular geographical area. The advantage of applicant-flow statistics is that they reveal who in the labor market has 

actually expressed an interest in the job offered by the employer. Population statistics for a particular geographical area include persons within 

the geographical area who are not interested in the job offered by the 

employer and exclude persons outside the geographical area who are interested. The racial composition of the group actually interested in the 

job offered by the employer may differ significantly from the racial 

composition of the general or qualified population. The disadvantage of 

applicant-flow statistics is that they may reflect distortions in the proportion of minority applicants, arising from the deterrent effect of the disputed employment practice, from the employer’s general reputation for 

discrimination, or from the opposite effect of an employer’s affirmative 

action efforts to recruit minority employees. In Hazelwood, the Supreme 

Court left the need for applicant-flow statistics to be determined on the 

facts of each case.104

After the racial composition of the labor market has been determined, it must be compared with the racial composition of the group of 

applicants actually hired by the employer during the relevant time period, 

determined by the effective date of Title VII or, more commonly, by the 

statute of limitations. Only hiring that occurred after the effective date of 

Title VII and within the limitation period constitutes an actionable violation of Title VII, although evidence of preenactment or prelimitation discrimination may support an inference of intentional discrimination at a 

later time.105 As the Court noted in Hazelwood, the racial composition of 

the employer’s workforce may reflect preenactment discrimination and 

 

104. Id.

105. See Bazemore v. Friday, 478 U.S. 385, 400–01 (1986) (Brennan, J., concurring 

in part) (emphasizing this point).
I. Prohibitions and Defenses in Title VII

29

may deviate substantially from the racial composition of the pool of employees actually hired over the relevant time period.106

The comparison between the racial composition of the labor market 

and the racial composition of the group hired should be accomplished by 

statistical methods, unless there are extreme disparities,107 such as the 

nearly complete absence of minority employees in the highest paying 

jobs in Teamsters.

108 The particular statistical methods adopted by the 

Court in Hazelwood may or may not be appropriate in other cases.109

This is a question for statisticians. The important point is that statistical 

methods are needed to account for the effects of chance: the possibility 

that differences in racial composition arise solely through the selection of 

a small sample of those hired from the larger population of those in the 

labor market. Statistical methods, however, have their limitations. In particular, they cannot be used to determine whether the difference in selection rates is large enough to justify a finding of intentional discrimination. This is a matter of legal policy, not of statistical expertise.

Statistics and statistical methods can be used in other kinds of cases 

as well. For instance, in Bazemore v. Friday,

110 the Supreme Court held 

that a regression analysis was highly probative of salary discrimination 

against black employees of a state agricultural extension service. Plaintiffs commonly use regression analysis to try to prove that employees of 

one race or sex are paid less than employees of another. In order to do so, 

the regression analysis must isolate the effect that race or sex has on pay 

by controlling for the differences between employees that an employer 

may legitimately consider in setting rates of pay. Nevertheless, because 

of limitations in the data on which it is based and because of theoretical 

disputes over what factors do legitimately affect compensation, regression analysis seldom takes account of all the factors that might conceivably be relevant. In Bazemore, the Court recognized that a regression 

analysis may omit some measurable variables, particularly when the record as a whole supported an inference of discrimination and the plaintiffs 

 

106. Hazelwood, 433 U.S. at 309 & n.15.

107. Id. at 307.

108. Teamsters, 431 U.S. at 337–38.

109. Hazelwood, 433 U.S. at 310–12 & n.17.

110. 478 U.S. 385 (1986) (per curiam). In an unusual alignment of opinions, Justice 

Brennan wrote an opinion concurring in part for all the justices. Id. at 388. He also wrote 

an opinion dissenting in part for four justices. Id. at 409. Justice White wrote a concurring 

opinion for five justices. Id. at 407.
Major Issues in the Federal Law of Employment Discrimination

30

submitted evidence that the omitted factor, the county where employees 

worked, did not account for the difference between the salaries of black 

employees and those of white employees.111 The Court’s decision may 

have been influenced by the way the lower courts framed their decision, 

almost holding that the regression analysis was inadmissible because it 

was “‘unacceptable as evidence of discrimination.’”112 The Supreme 

Court stopped just short of holding that the finding of no discrimination 

by the district court was clearly erroneous on the record before it.113 The 

general significance of the decision, however, lies in its evaluation of the 

statistical evidence based on the entire record.114 As the Court had earlier 

cautioned in Teamsters, statistics “come in infinite variety and, like any 

other kind of evidence, they may be rebutted.”115

A final issue raised, but not resolved, by Hazelwood is the content of 

the plaintiff’s “prima facie” case on a claim of class-wide disparate 

treatment. In Hazelwood and in Teamsters, the Court held that after the 

plaintiff has made out a prima facie case through statistical evidence, the 

defendant must be given an opportunity to present rebuttal evidence. It 

did not elaborate on the elements of the plaintiff’s prima facie case or on 

the consequences of the plaintiff’s making out a prima facie case. The 

Court’s silence on the elements of the plaintiff’s prima facie case apparently follows from its view that the relevance and probative force of statistics must be determined on a case-by-case basis.

The Court’s silence on the consequences of a prima facie case is 

more puzzling. On the one hand, its language suggests that the burden of 

production shifts to the defendant to present evidence from which a reasonable inference of no disparate treatment may be drawn and that the 

defendant’s failure to carry this burden requires a finding of disparate 

treatment.116 On the other hand, just as the Court was silent as to the content of the plaintiff’s prima facie case, it also did not specify the content 

of the defendant’s rebuttal case. If one interprets its language narrowly, 

the Court may only have required that the defendant be given an opportunity to present evidence on the issue of disparate treatment, not that the 

 

111. Id. at 402–03.

112. Id. at 400 (quoting Fourth Circuit’s opinion below).

113. Id. at 403–404 & n.14.

114. Id. at 400.

115. Teamsters, 431 U.S. at 340.

116. Hazelwood, 433 U.S. at 309.
I. Prohibitions and Defenses in Title VII

31

defendant bear the burden of production after the plaintiff has made out a 

prima facie case. In this interpretation, the Court’s use of the phrase 

“prima facie” refers only to the plaintiff’s ordinary burden of production 

to present evidence from which a reasonable inference of liability can be 

drawn. The consequence of a prima facie case in this sense is only to allow, not to require, the district judge to draw an inference of disparate 

treatment, even if the defendant presents no evidence in rebuttal. Although this narrow view appears to be better supported by the Court’s 

opinion as a whole, the only certain conclusion is that the Court would 

have done better to avoid using the phrase “prima facie case.”

The flexible structure of proof in class claims of intentional discrimination allows the admissibility of a wide range of evidence. A new form 

of evidence involves empirical studies of “implicit discrimination”: discrimination that occurs subliminally without the individual necessarily 

being aware of it. These studies typically ask subjects to associate members of different groups with desirable or undesirable characteristics. For 

instance, in one experiment, subjects were confronted with faces that 

appeared to be African-American or white and then asked to decide immediately whether they fit with words like “good” or bad.” Such “implicit association tests” (IATs) usually yield a finding that subjects take 

longer to associate members of minority groups with positive attributes 

than with negative ones. Studies of this kind were used to support certification of a nationwide class action in Wal-Mart Stores, Inc. v. Dukes.117

In a decision discussed more fully in the next chapter, the Supreme Court 

reversed certification of the class, finding insufficient common issues 

and no basis for certifying the class as one mainly for injunctive relief.

The plaintiffs alleged discrimination on the basis of sex in Wal-Mart’s 

operations throughout the country and they presented expert testimony 

on the prevalence of gender stereotypes derived partly from IATs. Questions have been raised about the validity of IATs alone to support findings of unlawful discrimination, for two separate reasons: first, they need 

to be confirmed by studies using other methodologies; and second, they 

establish only widespread tendencies rather than the existence of discrimination in any particular case.118 The overall tendency in the cases 

 

117. 131 S. Ct. 2541 (2011). 

118. For a review of the literature on gender bias, finding considerable evidence for 

it but cautioning against using it to find particular instances of sex discrimination, see 
Major Issues in the Federal Law of Employment Discrimination

32

resembles that in Dukes: to let such evidence in and to leave the trier of 

fact to determine its ultimate persuasiveness.

Class Claims of Disparate Impact

Unlike class claims of disparate treatment, class claims of disparate impact do not require proof of intentional discrimination. These claims require instead only proof of discriminatory effects. Exactly what this 

means—how it is proved by the plaintiff and how it may rebutted by the 

defendant—has been a source of controversy since the Supreme Court 

developed the theory of disparate impact in Griggs v. Duke Power Co.

119

Several decisions elaborated on the theory but left the elements of the 

plaintiff’s case and the defendant’s rebuttal uncertain. The Supreme 

Court resolved these uncertainties in favor of the defendants in Wards 

Cove Packing Co. v. Atonio,

120 only to have its decision largely overruled 

by Congress when it codified the theory of disparate impact in the Civil 

Rights Act of 1991.121 Together with the related issue of affirmative action, this history figured prominently in the decision in Ricci v. DeStefano.

122 Despite codification of the theory, doubts remain about exactly 

what it requires and what purposes it serves. These problems go back to 

the original decision in Griggs.

Under Griggs, a plaintiff can establish a violation of Title VII by 

proving that an employment practice has a disparate impact on persons 

of a particular race, national origin, sex, or religion. Once the plaintiff 

proves disparate impact, the burden of proof shifts to the defendant to 

prove that the employment practice is justified by “business necessity” or 

is “related to job performance.”123 Under Albemarle Paper Co. v. 

Moody,

124 if the defendant carries its burden of proof, the burden shifts 

back to the plaintiff to prove that the offered justification is a pretext for 

discrimination. The Civil Rights Act of 1991 codified this three-stage 

 

David Faigman et al., A Matter of Fit: The Law of Discrimination and the Science of 

Implicit Bias, 59 Hastings L.J. 1389 (2008).

119. 401 U.S. 424 (1971).

120. 490 U.S. 642 (1989).

121. 42 U.S.C. § 2000e-2(k) (2006); see Pub. L. No. 102-166 § 3(2), 105 Stat. 1071 

(1991) (stating purpose to overrule Wards Cove). 

122. 129 S. Ct. 2658 (2009).

123. Griggs, 401 U.S. at 431.

124. 422 U.S. 405, 425 (1975).
I. Prohibitions and Defenses in Title VII

33

structure of shifting burdens of proof, though it did not clarify ambiguities in the elements of each party’s case.

The fundamental ambiguity in the theory of disparate impact concerns its underlying purpose: Is it only a modest addition to the theory of 

disparate treatment, designed to prevent pretextual discrimination by 

shifting part of the burden of proof onto the defendant? Or is it an entirely independent theory, designed to discourage employers from using employment practices with an adverse impact upon any particular group? If 

the theory of disparate impact is designed only to prevent pretextual discrimination, then it would result in liability only when there is evidence 

of disparate treatment (evidence not strong enough, however, to justify a 

finding of intentional discrimination) and it would impose a significant, 

but not overwhelming, burden on the employer to show that a disputed 

employment practice is related to performance on the job. The theory 

would ease the plaintiff’s burden of proving intentional discrimination, 

but only to a degree. By contrast, if the theory of disparate impact is designed to discourage employment practices that disproportionately exclude members of minority groups and women, then it would result in 

liability in the absence of evidence of disparate treatment, and it would 

impose a heavy burden on the employer to justify an employment practice with disparate impact. The theory would serve the independent purpose of eliminating neutral employment practices that impose systematic 

disadvantages upon racial minorities and women.

To understand the ambiguities in the theory of disparate impact, it is 

necessary to examine the decisions that led from Griggs to Wards Cove.

Decisions before Wards Cove

In Griggs v. Duke Power Co.,

125 the Supreme Court sent an ambivalent 

message, endorsing both a narrow and a broad interpretation of the theory of disparate impact. The Court seemingly endorsed a narrower version 

of the theory of disparate impact when it stated, “Discriminatory preference for any group, minority or majority, is precisely and only what 

Congress has proscribed.”126 A few paragraphs later, however, the Court 

appeared to adopt the broader interpretation of the theory: “But Congress 

directed the thrust of the Act to the consequences of employment prac-

 

125. 401 U.S. 424 (1971).

126. Id. at 431.
Major Issues in the Federal Law of Employment Discrimination

34

tices, not simply the motivation.”127 Likewise, on the issue of the defendant’s burden of justification, the Court first appeared to place a heavy 

burden on the defendant, consistent with a broader interpretation of the 

theory: “The touchstone is business necessity.”128 But in the very next 

sentence, it appeared to impose only a light burden on the employer, consistent with the narrow interpretation: “If an employment practice which 

operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.”129 It is unclear whether the theory 

of disparate impact requires a difficult showing of business necessity or 

an easy showing of relationship to job performance.

Subsequent decisions of the Supreme Court, until Wards Cove, were 

equally ambiguous concerning the choice between a narrow version and 

a broad version of the theory. Most of these decisions concerned the defendant’s burden of justifying an employment practice with disparate 

impact. The decisions are discussed in detail in the subsection below on 

the defendant’s burden of proof, but broadly speaking, they fall into two 

groups. One group is consistent with the Uniform Guidelines on Employee Selection Procedures130 adopted by the Equal Employment Opportunity Commission (EEOC); the other is not.

The Uniform Guidelines impose exacting requirements upon defendants to justify practices with disparate impact, although the current version of the guidelines has relaxed these requirements somewhat. The 

cases that follow the Uniform Guidelines have generally endorsed a 

broad interpretation of the theory of disparate impact.131 Other cases, 

however, have imposed less stringent requirements for validation than 

the Uniform Guidelines do and, to that extent, favored a narrow interpretation of the theory.132 The varying deference given to the Uniform 

Guidelines arises from their status simply as interpretive regulations. 

Under Title VII, the EEOC does not have authority to promulgate sub-

 

127. Id. at 432.

128. Id. at 431.

129. Id.

130. 29 C.F.R. pt. 1607 (2010).

131. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425–436 (1975); Dothard v. 

Rawlinson, 433 U.S. 321, 328–33 (1977).

132. Washington v. Davis, 426 U.S. 229, 250–52 (1976); New York City Transit 

Auth. v. Beazer, 440 U.S. 568, 587 & n.31 (1979); see Ricci v. DeStefano, 129 S. Ct.

2658, 2678-79 (2009) (finding validation sufficient without citation to the guidelines).
I. Prohibitions and Defenses in Title VII

35

stantive regulations with the force of law.133 Early decisions by the Supreme Court sometimes gave “great deference” to the EEOC guidelines,

134 and sometimes gave them hardly any deference at all.135 Later 

decisions by the lower federal courts settled on the practice of treating 

them “with the appropriate mixture of deference and wariness.”136

Wards Cove and the Civil Rights Act of 1991

The decision in Wards Cove was preceded by Watson v. Fort Worth

Bank & Trust,

137 a case in which the Court expanded the scope of the

theory of disparate impact but divided evenly over the burden of proof 

that it placed upon employers. The first part of the opinion held that the 

theory of disparate impact applied to subjective employment practices, 

which required the exercise of discretion, in addition to standardized 

tests and qualifications, which were considered in Griggs and Albemarle

Paper.

138 The second part of the opinion led directly to Wards Cove and 

ultimately to the Civil Rights Act of 1991.

The claims in Wards Cove concerned discrimination in hiring workers in two salmon canneries that operated in Alaska during the summer. 

The jobs in the canneries were divided into jobs on the cannery lines 

(called “cannery jobs” in the opinion) and other jobs (called “noncannery jobs”). The cannery jobs were unskilled, while most of the noncannery jobs were skilled and accordingly paid more. While the noncannery jobs were filled predominantly by white workers, the cannery 

jobs were filled predominantly by minority workers. The Court held that 

the plaintiffs could not establish disparate impact simply by proving a 

racial imbalance in the composition of the workforce for cannery and 

non-cannery jobs. Instead, it was necessary for the plaintiffs to establish 

a disparity between the proportion of minority workers in non-cannery 

 

133. § 713(a), 42 U.S.C. § 2000e-12(a) (1988).

134. Albemarle Paper, 422 U.S. at 431; Griggs, 401 U.S. at 433–34.

135. General Elec. Co. v. Gilbert, 429 U.S. 125, 140–45 (1976); City of Los Angeles 

Dep’t of Water & Power v. Manhart, 435 U.S. 702, 719 n.36 (1978).

136. Guilino v. New York State Educ. Dep’t, 460 F.3d 361, 384 (2d Cir. 2006) (internal quotation marks omitted). Compare Garcia v. Spun Steak Co., 998 F.2d 1480, 

1489 (9th Cir. 1993) (not following EEOC guidelines on English-only rules), with Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1171 (10th Cir. 2007) (following EEOC guidelines on English-only rules).

137. 487 U.S. 977 (1988).

138. Id. at 989–91.
Major Issues in the Federal Law of Employment Discrimination

36

jobs and the proportion of those workers in the labor market for those 

positions.139 Moreover, the plaintiffs were required to identify the particular employment practices that caused this disparity.140 This holding was 

codified—not overruled—by the Civil Rights Act of 1991, which imposed the same requirement in nearly identical terms.141

The controversial holdings in Wards Cove concerned the defendant’s 

burden of proof and the plaintiff’s burden of proving pretext. The Court 

held that if the plaintiff succeeded in establishing disparate impact when 

the case was remanded to the district court, only the burden of production switched to the defendant and that the court’s examination of the 

employer’s evidence was limited to “a reasoned review of the employer’s 

justification for his use of the challenged practice.”142 If the defendant 

then succeeded in carrying this lighter burden of proof, the plaintiff was 

required to show that an alternative employment practice was equally 

effective in meeting the same business purposes but had a smaller disparate impact. In the Civil Rights Act of 1991, Congress rejected both of 

these holdings143 and indeed identified Wards Cove as one of the decisions overruled by the Act.144 In particular, Congress defined “demonstrate” to mean “meets the burden of production and persuasion” and 

required the defendant to “demonstrate that the challenged practice is job 

related for the position in question and consistent with business necessity.”145 Congress also required that the plaintiff’s proof of an alternative 

employment practice with lesser adverse impact meet the standards existing on the day before Wards Cove was decided.146 In the statement of 

legislative purpose and in the legislative history, Congress stated that the 

terms “business necessity” and “job related” are intended to follow the 

law as it existed before Wards Cove.

147

 

139. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 654 (1989).

140. Id. at 656.

141. § 703(k)(1)(A)(i), (B)(i), 42 U.S.C. § 2000e-2(k)(1)(A)(i), (B)(i) (2006).

142. Wards Cove, 490 U.S. at 659.

143. §§ 701(m), 703(k)(1)(A)(i), 42 U.S.C. §§ 2000e(m), 2000e-2(k)(1)(A)(i) 

(2006).

144. Pub. L. No. 102-166, §§ 2(2), 3(2), 105 Stat. 1071 (1991).

145. §§ 701(m), 703(k)(1)(A)(i), 42 U.S.C. §§ 2000e(m), 2000e-2(k)(1)(A)(i) 

(2006).

146. Id. § 703(k)(1)(C), 42 U.S.C. § 2000e-2(k)(1)(C) (2006).

147. Pub. L. No. 102-166, §§ 3(2), 105 Stat. 1071 (1991). In an unusual provision, § 

105(b) of the Civil Rights Act of 1991 identifies the only authorized legislative history of 
I. Prohibitions and Defenses in Title VII

37

Despite the clarity with which Congress rejected these holdings in 

Wards Cove, the ultimate effect of its legislation remains ambiguous. 

Congress clearly rejected a narrow interpretation of the theory of disparate impact that places only a light burden of proof upon the employer. It 

is not quite so clear what Congress accepted. In the crucial provision defining the defendant’s burden of proof, Congress did not choose between 

the terms “business necessity” and “related to job performance,” first 

used in Griggs to characterize the defendant’s burden of proof. Instead, it 

used both phrases, requiring the defendant to prove “that the challenged 

practice is job related for the position in question and consistent with 

business necessity.”148 From this provision, along with its authorized legislative history, Congress plainly meant to turn the clock back to before 

Wards Cove. Nevertheless, as we have seen, and as the section on the 

defendant’s burden of proof discusses in detail, the decisions prior to 

Wards Cove were ambiguous about exactly what was required of the defendant. The Civil Rights Act of 1991 did not eliminate that ambiguity.

On the issue of proof of an “alternative employment practice,” it is 

even less clear what Congress accomplished because it is doubtful that 

Wards Cove made any change in the law. Albemarle Paper Co. v. 

Moody149 already placed on the plaintiff the burden of proving pretext 

after the defendant carried its burden of proof. That decision, like Wards 

Cove, simply mentioned evidence of alternative employment practices as 

one way of proving pretext.150 It did not discuss the issue further.

Proof of Disparate Impact

The surviving holding in Wards Cove makes clear that the plaintiff’s 

burden of proving disparate impact should be analyzed along the same 

 

the provisions on disparate impact as a memorandum appearing at 137 Cong. Rec. 

S15,276 (daily ed. Oct. 25, 1991). Id. § 105(b), 105 Stat. at 1075. See infra note 159. 

148. Civil Rights Act of 1964, § 703(k)(1)(A)(i), 42 U.S.C. § 2000e-2(k)(1)(A)(i) 

(2006).

149. 422 U.S. 405 (1975).

150. Id. at 425. By contrast, the Uniform Guidelines on Employee Selection Procedures impose upon the employer the burden of proving that a validated employment practice has the least disparate impact among available alternatives. 29 C.F.R. § 1607.3B 

(2010). Even if this provision of the guidelines could have been reconciled with Albemarle Paper, it is now plainly superseded by the Civil Rights Act of 1991, which places 

the burden of proof on this issue explicitly on the plaintiff. § 703(k)(1)(A)(ii), 42 U.S.C. 

§ 2000e-2(k)(1)(A)(ii) (2006).
Major Issues in the Federal Law of Employment Discrimination

38

lines as it was in Hazelwood School District v. United States.

151 The labor market for the jobs at issue must be defined; the proportion of a particular group among those in the labor market and the proportion among 

those who possess the disputed qualification must then be established. 

The two proportions must next be compared by statistical means to determine the probability that any difference between them resulted solely 

by chance. Finally, any statistically significant difference must be examined to determine whether it is large enough to be practically significant. 

Proof of disparate impact differs from proof of disparate treatment only 

in the inference to be drawn from the statistical evidence; disparate impact is more directly and easily proved through statistical evidence than 

is intentional discrimination.

Both Wards Cove and the Civil Rights Act of 1991 added to the 

analysis in Hazelwood by requiring proof that “a particular employment 

practice” resulted in disparate impact.152 Alternatively, the plaintiff can 

prove that elements of the defendant’s decision-making process cannot 

be separated for analysis, in which case they are treated as a single employment practice.153 The defendant can rebut either of these showings 

by demonstrating that the particular employment practice identified by 

the plaintiff did not cause the disparate impact.154 These provisions add 

another layer of complexity, and another layer of shifting burdens of 

proof, to claims of disparate impact, but they also serve a significant purpose. They focus the inquiry on specific employment practices that the 

defendant must then justify.155

The Uniform Guidelines endorse a different rule for determining disparate impact: the “bottom line” rule that examines the net effect of all of 

the employer’s tests and qualifications on the ultimate selection of mem-

 

151. 433 U.S. 299 (1977); Wards Cove, 490 U.S. at 650–55.

152. § 703(k)(1)(B)(i), 42 U.S.C. § 2000e-2(k)(1)(B)(i) (2006).

153. Id.

154. § 703(k)(1)(B)(ii), 42 U.S.C. § 2000e-2(k)(1)(B)(ii) (2006).

155. The decision in Connecticut v. Teal, 457 U.S. 440 (1982), which preceded the 

Civil Rights Act of 1991, served a similar purpose, although it allowed the plaintiff to 

decide whether to attack a single employment practice for its disparate impact or to attack 

the overall effect of the employer’s selection procedures. That option was eliminated by 

the Act: Each separable element of a selection procedure must be evaluated independently. As the Supreme Court has recently reaffirmed, the “plaintiff must begin by identifying the specific employment practice that is challenged.” Wal-Mart Stores, Inc. v. Dukes,

131 S. Ct. 2541, 2555 (2011) (internal quotation marks and citation omitted).
I. Prohibitions and Defenses in Title VII

39

bers of a particular race, national origin, or sex for a particular job.156 The 

extent of this departure from existing law should not be exaggerated, 

however. The Uniform Guidelines purport only to establish rules for the 

guidance of federal agencies in exercising their discretion to enforce laws 

against employment discrimination. Thus, the Uniform Guidelines explicitly state that the “bottom line” rule is subject to exceptions and that 

it is not a rule of law but only a guide to the exercise of prosecutorial 

discretion.157

The same approach should be taken to other provisions of the Uniform Guidelines that depart from the analysis of statistical evidence in 

Hazelwood. The Uniform Guidelines endorse the general rule that an 

employer should examine applicant-flow statistics to determine disparate 

impact and, in particular, that the pass rate on a test (or other selection 

procedure) for any group cannot be less than four-fifths of the pass rate 

for the most successful group. Unlike the analysis in Hazelwood, the 

“four-fifths” rule of the Uniform Guidelines does not require an analysis 

of the relevant labor market or the presence of a statistically significant 

disparity between pass rates. Nevertheless, the Uniform Guidelines allow 

an exception for statistically insignificant disparities based on small 

numbers.158 Because the Uniform Guidelines provide a simpler method 

of determining disparate impact than does Hazelwood, they provide a 

useful starting point to, but not a substitute for, the more complicated 

analysis endorsed by the Supreme Court.

Defendant’s Burden of Proof

As discussed earlier, several crucial provisions of the Civil Rights Act of 

1991 concern the defendant’s burden of proof. First, the Act defines 

“demonstrate” to mean “meets the burden of production and persuasion.”159 Second, in a provision that was the subject of extended debate 

and compromise, the Act requires the defendant “to demonstrate that the 

challenged practice is job related for the position in question and consistent with business necessity.”160 Although this provision requires proof 

of both job relationship and business necessity, it qualifies the latter 

 

156. Teal, 457 U.S. at 452; 29 C.F.R. § 1607.4C (2010).

157. 29 C.F.R. § 1607.4C (2010).

158. Id. § 1607.4D.

159. § 701(m), 42 U.S.C. § 2000e(m) (2006).

160. § 703(k)(1)(A)(i), 42 U.S.C. § 2000e-2(k)(1)(A)(i) (2006).
Major Issues in the Federal Law of Employment Discrimination

40

phrase by requiring proof only that the disputed practice is “consistent 

with business necessity,” not that it is “required by business necessity.”161 Third, both the preamble to the statute and the authorized legislative history state that the purpose of this provision was to return the law 

to the condition that it was in immediately before the decision in Wards 

Cove.

162 Presumably Congress meant to reject the opinion of Justice 

O’Connor, writing for four justices in Watson v. Fort Worth Bank & 

Trust,

163 which addressed the defendant’s burden of proof. That opinion 

simply prefigured the rejected holdings in Wards Cove. Even so, the decisions before Watson were also ambiguous.

This ambiguity is most apparent in the different degrees of deference 

that the Supreme Court has given to the Uniform Guidelines (and their 

predecessors) on the employer’s burden of proof. The Uniform Guidelines allow three forms of justification for employment practices with 

disparate impact, called “validation” in their terminology: content validation, criterion validation, and construct validation. These forms of validation can be applied to any employment practice, whether a subjective 

evaluation or an objective test or qualification.164 It is simplest, however, 

to discuss these forms of validation as they apply to objective employment tests.

In content validation, an employment test is shown to be related to 

the job if the content of the test is “representative of important aspects of 

performance on the job for which the candidates are to be evaluated.”165

The most important requirements for content validity are that the content 

of the test contain all important aspects of the job, and that performance 

on those aspects of the job be readily observable. The latter requirement 

 

161. Id.

162. Pub. L. No. 102-166, §§ 3(2), 105(b), 105 Stat. 1071, 1075 (1991). The second 

of these provisions identified the only authorized legislative history of the provisions on 

the theory of disparate impact as an interpretive memorandum appearing at 137 Cong. 

Rec. S15,276 (daily ed. Oct. 25, 1991). In discussing the defendant’s burden of proof, 

this memorandum states: “The terms ‘business necessity’ and ‘job related’ are intended to 

reflect the concepts enunciated by the Supreme Court in Griggs v. Duke Power Co., 401 

U.S. 424 (1971), and in the other Supreme Court decisions prior to Wards Cove Packing 

Co. v. Atonio, 490 U.S. 642 (1989).” The statement of purposes of the Civil Rights Act of 

1991 in § 3(2) says the same thing in almost the same words.

163. 487 U.S. 977 (1988).

164. 29 C.F.R. § 1607.2B (2010).

165. Id. § 1607.5B.
I. Prohibitions and Defenses in Title VII

41

is necessary to distinguish content validation from construct validation, 

in which abstract abilities and characteristics are related to performance 

on the job. The standard example of content validity is a data entry test 

for a clerical worker. Note, however, that such a test would not be “content valid” for a job with broader duties, such as a customer service representative, which would require more than simply entering data into a 

computer—i.e., taking phone calls, responding to complaints, or assisting 

customers. Note also that such a test is “content valid” for a purely clerical position because it directly incorporates the important aspects of the 

job, not because it measures some abstract ability or characteristic, such 

as manual dexterity, which could be related to the job only through construct validation.

Criterion validation is the most general and acceptable form of validation under the Uniform Guidelines. It requires that a test or qualification be shown to be related to good performance on the job according to 

some criterion, such as error rate, output, or supervisors’ evaluations. 

The crucial steps in criterion validation are proving that the chosen criterion in fact measures good performance on the job and establishing a 

statistically significant correlation between good performance on the test 

and good performance on the job according to the chosen criterion.166 An 

example of criterion validation is a showing that a test for manual dexterity is related to good performance on an assembly-line job, as measured 

by the criteria of speed of performance and error rate. Validation requires 

that the criteria of speed and error rate be established as appropriate 

measures of good performance on the job and that a statistically significant correlation be established between good performance on the test and 

good performance according to these criteria. Note that the process of 

validating this test, like the process of validating the data entry test discussed earlier, does not make any appeal to the abstract ability or construct of manual dexterity. Even a test that purported to measure some 

other construct, such as intelligence, would be criterion valid if it was 

shown to have a statistically significant correlation with good performance on the job according to some accepted criterion.

Unlike content validation, criterion validation is not limited to tests 

that reproduce important aspects of the job, and unlike construct validation, its acceptability is not openly doubted by the Uniform Guidelines. 

 

166. Id. § 1607.14B(2), (5).
Major Issues in the Federal Law of Employment Discrimination

42

The requirements of criterion validation, however, are difficult and costly to satisfy. In many complicated jobs, the only appropriate criterion of 

good performance is an evaluation by a supervisor or some other expert

with training and experience. Such evaluations are almost always discretionary and judgmental and therefore cannot easily be checked for uniformity and lack of bias.167 Establishing a statistically significant correlation between the qualifications or test and good performance on the job is 

even more difficult and costly.168 Consequently, some cases have applied 

the requirements for criterion validation with a degree of leniency not 

found in the Uniform Guidelines.169

Construct validation is the least favored form of validation under the 

Uniform Guidelines. Employers using construct validation must show 

that a test or qualification measures a “construct,” an abstract ability or 

characteristic such as intelligence or manual dexterity, and that possessing the construct is correlated with good performance on the job. The 

notorious problems with intelligence tests illustrate the difficulty of construct validation. First, any construct like intelligence is difficult to define, precisely because it is an abstract ability or characteristic. Does intelligence include ability in higher mathematics but not shrewdness in 

business dealing? If it includes both, how is good performance in these 

separate activities to be weighted? Second, constructs that are difficult to 

define are also difficult to measure. How do we know that an intelligence 

test measures the forms of intelligence relevant to both higher mathematics and business dealing? Third, constructs are difficult to relate to good 

performance on the job. How can a statistically significant correlation be 

established between intelligence and good performance on any particular 

job? The Uniform Guidelines impose exacting standards for construct 

validation to avoid these problems. The most exacting standard is a preliminary requirement that the construct itself have been related to good 

performance on the job by criterion validation.170 Since few such criteri-

 

167. Id. § 1607.14B(3), (4). See also Albemarle Paper Co. v. Moody, 422 U.S. 405, 

432–33 (1975).

168. Ricci v. DeStefano, 129 S. Ct. 2658, 2665 (2009) (validation study cost 

$100,000); Barbara L. Schlei & Paul Grossman, Employment Discrimination Law 113 

n.106 (2d ed. 1983) (criterion validation costs estimated at between $100,000 and 

$400,000 in 1978). 

169. E.g., Washington v. Davis, 426 U.S. 229, 248–52 (1976).

170. 29 C.F.R. § 1607.15D(7) (2010).
I. Prohibitions and Defenses in Title VII

43

on validations of constructs have been performed for particular jobs, an 

employer is better off directly relying on criterion validation of the qualification or test at issue by showing a statistically significant correlation 

between having the qualification or performing well on the test and performing well on the job. It is easier to validate an intelligence test directly by criterion validation than by first showing that it measures intelligence and then showing that intelligence is related to good performance 

on the job.

The Supreme Court’s reaction to the Uniform Guidelines has been 

mixed. In Albemarle Paper Co. v. Moody,

171 the Court strongly endorsed 

an earlier version of the guidelines adopted by the EEOC that imposed 

even more stringent requirements on validation than do the Uniform 

Guidelines. Quoting Griggs, the Court stated that the guidelines were 

“‘entitled to great deference.’”172 Like Griggs, however, Albemarle Paper was a case in which there was independent evidence of intentional 

discrimination and in which the employer’s attempt to justify its use of 

employment tests was obviously flawed. Although the employer’s validation study was superficially in compliance with the guidelines, it was 

hastily conceived and poorly executed, and it failed to yield statistically 

significant results.173 Likewise, in Dothard v. Rawlinson,

174 the Court 

found an employer’s justification for a height and weight requirement 

with a disparate impact on women to be inadequate, but the employer 

offered only an unsupported correlation between height and weight and 

strength.

In cases in which the employer has offered some plausible justification for a practice with disparate impact, the Court has been much more 

lenient than the Uniform Guidelines. In Washington v. Davis,

175 a case 

not directly concerned with Title VII, the Court went out of its way to 

hold that the earlier version of the guidelines endorsed in Albemarle Paper had been satisfied. The disputed employment practice was a test of 

verbal and writing ability used to screen applicants for jobs as police officers. The plaintiffs alleged that the test had a disparate impact upon 

blacks. The defendants tried to justify use of the test by showing that 

 

171. 422 U.S. 405 (1975).

172. Id. at 431 (quoting Griggs v. Duke Power Co., 401 U.S. 424, 433–34 (1971)).

173. Id. at 431–36.

174. 433 U.S. 321 (1977).

175. 426 U.S. 229 (1976).
Major Issues in the Federal Law of Employment Discrimination

44

scores on the test were correlated with scores on a test administered to 

newly hired police officers after a seventeen-week training course. The 

Court held that the requirements of the earlier guidelines were satisfied 

despite the existence of a correlation only between scores on two written 

tests. There was no correlation between performance on either of the 

tests and performance as a police officer.176 The Court reasoned that it 

was “apparent” that some minimal level of verbal ability was necessary 

for completion of the training program and that establishing only a relationship between the verbal ability test and the training test was “the 

much more sensible construction of the job-relatedness requirement.”177

In a later case, decided after the Uniform Guidelines took effect, the 

Court was even more summary in finding a justification for an employment practice with alleged disparate impact. In New York City Transit 

Authority v. Beazer,

178 the Court held that the exclusion of persons on 

methadone from jobs in the transit system, despite possible disparate impact upon blacks and Hispanics, was justified by a showing that it served 

the employer’s legitimate goals of safety and efficiency.179

A possible explanation for the lenient application of the requirements 

of validation in both Washington and New York City Transit Authority is 

the absence of evidence of intentional discrimination and, at least in the 

latter case, the weakness of the evidence of disparate impact.180 These 

facts support the conclusion that the Court has adopted only a narrow 

version of the theory of disparate impact, one designed to ease the burden of plaintiffs in proving intentional discrimination but not to force 

employers to abandon employment practices with disparate impact. Nevertheless, statements of the Court in Griggs and Albemarle Paper support 

a broad interpretation of the theory.

The courts of appeals have also refused to accept a literal interpretation of the Uniform Guidelines. Particularly in evaluating attempts at 

criterion and content validation, they have interpreted the guidelines leniently, citing their character as guidelines rather than as regulations with 

 

176. Id. at 250–52.

177. Id. at 250–51.

178. 440 U.S. 568 (1979).

179. Id. at 587 & n.31.

180. Id. at 584–87.
I. Prohibitions and Defenses in Title VII

45

the force of law.181 The Supreme Court also summarily affirmed the decision of a three-judge district court that relied on similar reasoning.182

The cases that have addressed these issues after the Civil Rights Act of 

1991 have applied the guidelines in the same flexible way.183 Others have 

not even relied upon the guidelines but have found an employer’s attempt at validation inadequate only because it was based on conclusory 

expert testimony about the minimum requirements for the job.184 The 

meaning of the present statutory language—“job related for the position 

in question and consistent with business necessity”—must be developed 

in further decisions such as these. It was not determined by the ambiguous decisions that preceded Wards Cove.

The Theory of Disparate Impact and Affirmative Action

Before the Civil Rights Act of 1991, doubts about the theory of disparate 

impact focused on its source in the statutory language and on its relationship to affirmative action. The former issue was settled by the Act, which 

codified the theory of disparate impact, but the latter issue was left open. 

The Act was initially opposed for fostering “quotas,”185 leading Congress 

to maintain a studied silence on the issue of affirmative action, broken 

only by two specific provisions in the legislation as it was ultimately enacted. First, the Civil Rights Act of 1991 prohibits “group norming” of 

test scores: the practice of altering scores on employment-related tests 

based on race, national origin, sex, or religion.186 This prohibition is directed against a specific form of affirmative action. Second, in an uncodified section of the Act, Congress disclaimed any effect on “courtordered remedies, affirmative action, or conciliation agreements, that are 

 

181. Contreras v. City of Los Angeles, 656 F.2d 1267, 1281 (9th Cir. 1981), cert. 

denied, 455 U.S. 1021 (1982); Guardians Ass’n v. Civil Serv. Comm’n, 630 F.2d 79, 90–

91 (2d Cir. 1980), cert. denied, 452 U.S. 940 (1981).

182. Nat’l Educ. Ass’n v. S. Carolina, 434 U.S. 1026 (1978), aff’g 445 F. Supp. 

1094 (D.S.C. 1977).

183. Williams v. Ford Motor Co., 187 F.3d 533, 539 n.5 (6th Cir. 1999); Officers for 

Justice v. Civil Serv. Comm’n, 979 F.2d 721, 726–27 (9th Cir. 1992); Legault v. aRusso, 

842 F. Supp. 1479, 1488–89 (D.N.H. 1994).

184. Lanning v. Se. Pa. Transp. Auth., 181 F.3d 478, 491–92 (3d Cir. 1999); Bradley v. Pizzaco of Nebraska, Inc., 7 F.3d 795, 797–99 (8th Cir. 1993).

185. See supra note 33.

186. § 701(l), 42 U.S.C. § 2000e-2(l) (2006).
Major Issues in the Federal Law of Employment Discrimination

46

in accordance with the law.”187 These provisions, like those directly concerned with the theory of disparate impact, are intertwined with the decision in Wards Cove.

One of the reasons offered in Wards Cove for adopting a narrow interpretation of the theory of disparate impact was that a broad interpretation of the theory would effectively require employers to engage in affirmative action.188 Any such requirement would be inconsistent with 

§ 703(j) of Title VII, which provides that “[n]othing contained in this 

title shall be interpreted to require” any form of affirmative action.189

Whether the Civil Rights Act of 1991 endorsed this reasoning in Wards 

Cove is an open question. On the one hand, this passage appears in a part 

of the opinion concerned with proof of disparate impact. On this issue, as 

previously stated, the Civil Rights Act of 1991 followed Wards Cove. 

On the other hand, the Act overruled Wards Cove on the issue of the 

defendant’s burden of proof. The Act imposed a heavier burden on the 

defendant, which might well lead employers to engage in affirmative 

action. If employers can eliminate the disparate impact of an employment practice through affirmative action, they can avoid the burden of 

proving that the practice is justified. Voluntary affirmative action itself 

was strongly endorsed by the Supreme Court in United Steelworkers v. 

Weber,

190 which held that such plans are consistent with Title VII. As the 

defendant’s burden of proof becomes heavier, however, affirmative action resembles less a voluntary option than a practical requirement.

All of these issues figured prominently in Ricci v. DeStefano,

191 a 

case concerned with the promotion of firefighters to the position of lieutenant and captain in the New Haven fire department. The city administered two tests that resulted in no blacks and only two Hispanics receiving scores high enough to become eligible for promotion under the 

applicable civil service rules. After a series of contentious hearings, the 

city decided to discard the test results and to start the promotion process 

over again. Its principal concern was to avoid liability under the theory 

of disparate impact to the blacks and Hispanics who had failed the test. 

Seventeen whites and one Hispanic who passed then sued, claiming vio-

 

187. Pub. L. No. 102-166, § 116, 105 Stat. 1071 (1991).

188. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 652 (1989).

189. § 703(j), 42 U.S.C. § 2000e-2(j) (2006).

190. 443 U.S. 193 (1979).

191. 129 S. Ct. 2658 (2009).
I. Prohibitions and Defenses in Title VII

47

lations of Title VII and the Constitution. The Supreme Court, without 

reaching any of the constitutional issues, held the city liable for intentional discrimination under Title VII because it had made a decision 

based on race in rejecting the test results solely because of their adverse 

impact. The Court recognized a defense to this claim of intentional discrimination, but only if the city had a “strong basis in evidence” for concluding that it would have been held liable under the theory of disparate 

impact to minority employees if it had acted upon the test results.192 The 

city failed to make out such a showing because, according to the Court, it 

failed to establish the absence of a business justification for the tests. On 

the available evidence, the Court found “no genuine dispute that the examinations were job-related and consistent with business necessity.”193

Summary judgment accordingly was entered for the plaintiffs.

The dissenting opinion disputed the evidence on the job relationship 

of the tests, pointing out that paper-and-pencil tests like those administered by the city were unreliable measures of the leadership skills necessary in the positions of lieutenant and captain.194 The larger significance 

of the case concerned what the employer had to prove to establish the 

absence of a defense to a claim of disparate impact. The Court derived its 

standard of a “strong basis in evidence” from opinions on the constitutionality of affirmative action, not those on affirmative action under Title 

VII,195 and used it to balance two conflicting concerns: one to give employers leeway to comply with Title VII and the requirements of the theory of disparate impact, and another to avoid any form of coerced affirmative action. It was this second concern that returned to the reasoning 

in Wards Cove and earlier cases. According to the Court, a standard that 

required only minimal proof “would amount to a de facto quota system, 

in which a ‘focus on statistics ... could put undue pressure on employers 

to adopt inappropriate prophylactic measures.’”196 This reasoning works 

to the disadvantage of employers, like the city of New Haven, who discard test results for fear of disparate impact liability. But by contrast, it 

 

192. Id. at 2676.

193. Id. at 2678.

194. Id. at 2703-07 (Ginsburg, J., dissenting).

195. Id. at 2675 (relying upon Richmond v. J.A. Croson Co., 488 U.S. 469, 500 

(1989), and Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 277 (1986) (plurality opinion)).

196. Id. (quoting Watson v. Ft. Worth Bank & Trust, 487 U.S. 977, 992 (1988) (plurality opinion)).
Major Issues in the Federal Law of Employment Discrimination

48

also works to the advantage of employers faced with actual claims of 

disparate impact. If the employer’s burden of proof is higher to show the 

absence of a business justification in cases like Ricci, it must necessarily 

be lower to show the presence of such a justification in response to a disparate impact claim. The opinion in Ricci also has implications for affirmative action (discussed in the next section), but the Court was careful 

to limit its decision to cases in which an employer had already settled on 

a test or selection procedure. The Court distinguished cases in which an 

employer was initially choosing a test or designing a selection procedure.197

Whatever doubts the Court has about affirmative action, the writers 

of the Uniform Guidelines do not share them. The guidelines explicitly 

provide that affirmative action plans that eliminate disparate impact are 

an alternative to validation198 and that an employer’s affirmative action 

policies shall be taken into account in determining disparate impact.199

The guidelines also contain a policy statement on affirmative action approving the use of affirmative action plans,200 and the EEOC has adopted 

separate guidelines on affirmative action providing for approval of such 

plans by the commission.201 All of these guidelines must now be qualified in light of the prohibition against group norming of test scores enacted by the Civil Rights Act of 1991202 and by subsequent decisions 

such as Ricci.

 

197. Id. at 2676-77. In an interesting sequel to Ricci, the Second Circuit allowed a 

disparate impact claim to go forward by a nonwhite firefighter who failed the promotion 

test. Briscoe v. City of New Haven, 654 F.3d 200 (2d Cir. 2011). The court reached this 

conclusion despite the passage in Ricci that contemplated the possibility of such a claim: 

“If, after it certifies the test results, the City faces a disparate-impact suit, then in light of 

our holding today it should be clear that the City would avoid disparate-impact liability 

based on the strong basis in evidence that, had it not certified the results, it would have 

been subject to disparate-treatment liability.” Ricci, 129 S. Ct. at 2681. A petition for 

certiorari has not, as of this writing, been filed in this case.

198. 29 C.F.R. § 1607.6A (2010).

199. Id. § 1607.4E.

200. Id. § 1607.17.

201. Affirmative Action Appropriate under Title VII of the Civil Rights Act of 1964 

(codified as amended at 29 C.F.R. pt. 1608 (2010)).

202. § 703(l), 42 U.S.C. § 2000e-2(l) (2006).
I. Prohibitions and Defenses in Title VII

49

Affirmative Action

Affirmative action has caused more controversy in civil rights law than 

any other issue. In employment discrimination law, the controversy has 

occurred at several different levels: in the terms of the statute itself, in 

the requirements of the Constitution, and in guidelines promulgated by 

the EEOC. As the preceding section explains, the Civil Rights Act of 

1991 generated debate over affirmative action, mostly as it related to the 

theory of disparate impact. In its final form the Act contained three provisions directly related to affirmative action: first, the prohibition against 

“group norming” of scores on employment tests—adjusting test scores 

on the basis of race, national origin, sex, or religion;203 second, general 

procedural restrictions on collateral attack on injunctions and consent 

decrees, mainly designed to protect judicially ordered or judicially approved affirmative action plans;204 and third, the uncodified disclaimer 

that nothing in the Act’s amendments to Title VII affects existing affirmative action plans.205 The first provision concerns tests and is discussed in 

the preceding section;206 the second concerns procedures for enforcing 

Title VII and is taken up in the section on preclusion.207 The third provision, discussed below, leaves affirmative action under Title VII as it was 

before the Civil Rights Act of 1991.

Statutory Issues

As originally enacted, Title VII contained two provisions on affirmative 

action: a narrow provision that allows preferences in favor of Native 

Americans on or near a reservation,208 and a general disclaimer of any 

form of required affirmative action. The former has given rise only to 

limited litigation, mainly over constitutional issues discussed later. The 

latter has been far more significant and was one of several important

exceptions and qualifications added to Title VII to ensure its passage. 

Consequently, the general disclaimer of required affirmative action in 

§ 703(j) both limits and defines the prohibitions in Title VII against discrimination.

 

203. Id.

204. § 702(n), 42 U.S.C. § 2000e-2(n) (2006).

205. Pub. L. No. 102-166, § 116, 105 Stat. 1071, 1079 (1991).

206. See supra text accompanying notes 182–91.

207. See infra text accompanying notes 645–53.

208. § 703(i), 42 U.S.C. § 2000e-2(i) (2006).
Major Issues in the Federal Law of Employment Discrimination

50

Section 703(j) states that “[n]othing contained in this title shall be 

interpreted to require” preferential treatment of any individual or group 

on the basis of race, national origin, sex, or religion.209 In addition to the 

questions raised by the theory of disparate impact, discussed earlier, two 

questions have arisen about the language of § 703(j): first, whether “require” should be read as “require or permit,” thus making § 703(j) a prohibition against all forms of preferential treatment, either undertaken 

voluntarily by an employer or required by the government; and second, 

whether “[n]othing in this title” should refer only to the prohibitions 

against discrimination in Title VII or also to the provisions for remedying violations of Title VII. The Supreme Court resolved the first question

in favor of a literal interpretation of the word “require.” Title VII does 

not prohibit preferential treatment voluntarily undertaken by an employer. The Supreme Court resolved the second question in favor of a nonliteral interpretation of the phrase “[n]othing in this title.” Title VII does 

not prohibit courts from requiring preferential treatment as a remedy for 

employment discrimination, but it authorizes them to do so only in narrowly limited circumstances.

The Supreme Court decided that Title VII does not prohibit voluntary preferential treatment. In United Steelworkers v. Weber,

210 Kaiser 

Aluminum & Chemical and the United Steelworkers had entered into a 

collective bargaining agreement that established a preference for black 

employees for admission to on-the-job training programs for craft positions. In particular, one-half of the openings in these programs were reserved for black employees. The Court characterized this preference as a 

wholly voluntary and private effort to eliminate the racial imbalance in 

Kaiser’s workforce of craft employees.211 Because the Court found no 

government involvement in the preference, it avoided any constitutional 

question about government power to establish or require preferences in 

employment.212 The Court’s holding was limited to Title VII and to 

wholly voluntary private preferences—in particular, those “designed to 

break down old patterns of racial segregation and hierarchy,” and that did 

 

209. § 703(j), 42 U.S.C. § 2000e-2(j) (2006).

210. 443 U.S. 193 (1979).

211. Id. at 201. The dissent, however, found a degree of government coercion based 

on evidence that the plan was adopted to preserve the employer’s eligibility to obtain 

federal contracts. Id. at 222–23 (Rehnquist, J., dissenting).

212. Weber, 443 U.S. at 200.
I. Prohibitions and Defenses in Title VII

51

“not unnecessarily trammel the interests of the white employees.”213 On 

the first point, the Court relied on the nearly complete absence of blacks 

from craft positions in Kaiser’s workforce and the long history of exclusion of blacks from craft positions generally.214 On the second point, the 

Court emphasized that the preference did not require the discharge of 

white workers, that it did not prevent the training and promotion of white 

employees, and that it was a temporary measure designed to end as soon 

as the racial imbalance in craft positions ended.215

In Johnson v. Transportation Agency,

216 the Supreme Court upheld a 

preference in favor of women on much the same grounds. The case involved a public employer, but it, too, was decided entirely under Title 

VII.

217 Over two bitter dissents,218 the Court continued to adhere to the 

decision and reasoning in Weber, modifying its analysis in only one significant respect: by suggesting that a preference would be upheld only if 

it were flexibly applied according to the proportion of the favored 

group—here women—who possessed the qualifications for the job.219

Justice O’Connor, in a separate opinion, would have taken this reasoning 

a step further and required evidence sufficient to make out a prima facie 

case of past discrimination against women, equating “manifest imbalance” under Weber with proof of disparate impact.220 This reasoning reveals the systematic connection between the theory of disparate impact 

and permissible forms of affirmative action, since both are concerned 

with the effects of employment practices. Nevertheless, this reasoning 

was not strictly necessary to the decision, because the imbalance in Johnson, as in Weber, was substantial. No woman had ever previously been 

employed in the position in dispute, or even in the same department.221

The Court’s treatment of judicially ordered preferences has been 

more complicated, if not more confusing, than its treatment of wholly 

private preferences. The case closest on its facts to Weber is Local No. 

 

213. Id. at 208.

214. Id. at 198 & n.1.

215. Id. at 208.

216. 480 U.S. 616 (1987).

217. The plaintiff failed to assert any claim under the Constitution. Id. at 620 n.2.

218. Id. at 657 (White, J., dissenting); id. at 657–77 (Scalia, J., dissenting).

219. Id. at 636–37.

220. Id. at 649–53 (O’Connor, J., concurring in the judgment). The majority explicitly refused to take this step. Id. at 632–33 & n.10.

221. Id. at 636.
Major Issues in the Federal Law of Employment Discrimination

52

93, International Association of Firefighters v. City of Cleveland,222

which upheld a consent decree that settled claims of racial discrimination 

in promotions in the Cleveland Fire Department. The plaintiffs and the 

city had reached agreement on the consent decree, but the union representing the firefighters, most of whom were white, had intervened in the 

action and objected to the decree because it established a preference in 

promotions. The only question presented to the Supreme Court was 

whether Title VII authorized the district court’s approval of the consent 

decree. The Court held that it did, even if it would not have authorized 

the district court to impose the same preference by its own order.223 The 

Court held, however, that the consent decree was binding only on the 

plaintiffs and the city, not on the union or on white employees, and in 

particular, it did not preclude the latter group from objecting in timely 

fashion to the district court’s action on constitutional grounds.224

The Court’s only decision on modification—as opposed to approval—of consent decrees strikes a much different note. In Firefighters Local Union No. 1784 v. Stotts,

225 the Court held that a district court could 

not modify a consent decree to impose a preference in layoffs. The consent decree settled claims of racial discrimination in hiring and promotion in the Memphis Fire Department and established long-term and interim goals for hiring and promoting blacks, but it did not provide for 

preferences in layoffs or seniority. After the city announced that firefighters would be laid off in reverse order of seniority, according to the 

rule of “last hired, first fired,” the district court enjoined any layoffs that 

would reduce the proportion of blacks employed by the fire department.

The Court found no basis for this order in the consent decree, emphasizing the importance of union participation in matters affecting seniority,

and relying on the exception for seniority systems in § 703(h).226 In the 

most controversial part of its opinion, the Court discussed more general 

limits on judicial remedies under § 706(g), suggesting that it restricted 

compensatory relief, or any form of individual benefits, only to victims 

 

222. 478 U.S. 501 (1986).

223. Id. at 516.

224. Id. at 530–31.

225. 467 U.S. 561 (1984).

226. Id. at 574–75; § 703(h), 42 U.S.C. § 2000e-2(h) (2006).
I. Prohibitions and Defenses in Title VII

53

of discrimination.227 It relied on statements by prominent supporters of 

Title VII interpreting § 706(g) as a limit on “racial quotas.”228

Nevertheless, in subsequent cases the Court has refused to take these 

statements literally. In Local 28, Sheet Metal Workers’ International Association v. EEOC,

229 the Court held that a district court could impose a 

goal of 29.23% minority membership upon a local union in the construction industry and that it could establish a fund primarily for the benefit of 

minority apprentices. The union had engaged in a long-standing pattern 

of racial discrimination, despite repeated judicial and administrative findings of past discrimination and repeated orders against future discrimination. After repeated attempts to obtain compliance with its orders, the 

district court imposed these disputed race-conscious remedies, which 

were affirmed in relevant part by the court of appeals. The Supreme 

Court also affirmed, but by a divided vote,

230 interpreting the membership goal with a degree of flexibility, so that it did not cause white employees to lose their jobs if its schedule for admissions was not met.231

For a plurality of four justices, Justice Brennan identified several circumstances in which they are appropriate: when a defendant has engaged in 

“particularly long-standing or egregious discrimination”; when informal 

mechanisms may obstruct equal employment opportunities (for instance, 

when an employer has a reputation for discrimination); and when interim 

goals are necessary “pending the development of nondiscriminatory hiring or promotion procedures.”232 Justice Brennan also emphasized, however, that other remedies were adequate in most cases, and he approved 

the cautious approach to preferences taken by the courts of appeals.233

 

227. § 706(g)(2)(A), 42 U.S.C. § 2000e-5(g)(2)(A) (2006).

228. Stotts, 467 U.S. at 579–83 (internal quotation marks omitted).

229. 478 U.S. 421 (1986).

230. Justice Brennan wrote for a plurality of four justices, and Justice Powell wrote 

a separate opinion concurring in part and concurring in the judgment. Powell joined the 

opinion of Brennan, thereby creating an opinion for the Court, only on a few collateral 

holdings: that the sanctions imposed by the district court were for civil, instead of criminal, contempt; that the statistical evidence the district relied on was correct in all significant respects; and that the district court did not unduly interfere in the union’s internal 

affairs by appointing an administrator. Id. at 442–44, 481–82 (opinion of Brennan, J.).

231. Id. at 477–78 & n.48 (opinion of Brennan, J.); id. at 487–88 (Powell, J., concurring in part and concurring in judgment).

232. Id. at 448–50 (opinion of Brennan, J.).

233. Id. at 475–76 & n.48.
Major Issues in the Federal Law of Employment Discrimination

54

Adding the necessary fifth vote to form a majority, Justice Powell agreed 

with the need for preferences only in “cases involving particularly egregious conduct.”234

The studied silence of the Civil Rights Act of 1991 does not appear

to have affected these decisions. The only provision that addresses affirmative action in general is uncodified and states, somewhat cryptically, that “[n]othing in the amendments made by this title shall be construed to affect court-ordered remedies, affirmative action, or 

conciliation agreements, that are in accordance with the law.”235 The 

immediate purpose of this provision appears to have been to preserve 

existing affirmative action plans, despite the Act’s definition of “an unlawful employment practice” as one in which “race, color, religion, sex, 

or national origin was a motivating factor.”236 It is doubtful that this provision goes any further than preserving existing decisions on affirmative 

action, neither ratifying nor undermining their force as precedents.237

Any change is more likely to come from the Supreme Court itself, as 

in Ricci v. DeStefano.

238 As noted in the previous section, this decision 

directly concerned the relationship between claims of disparate treatment 

and disparate impact. The Court held that an employer had engaged in 

intentional discrimination in violation of Title VII when it discarded the 

results of two promotion tests solely because of their adverse impact on 

blacks and Hispanics. The decision to discard the test results amounted to 

intentional discrimination on the basis of race and the employer failed to 

make out a defense that it would otherwise have been held liable under 

the theory of disparate impact. The connection to affirmative action was 

hardly addressed in the opinion, but it is apparent from the common concern of both the theory of disparate and affirmative action with groups. 

Both focus on the numbers of each group in the employer’s work force, 

not on the treatment of individual employees.

The immediate significance of the opinion lies as much in what it 

doesn’t say as what it does. The Court takes the standard for considering 

race in these circumstances from constitutional decisions on affirmative

action, not those under Title VII. The employer had to have a “strong 

 

234. Id. at 483 (Powell, J., concurring in part and concurring in judgment).

235. Pub. L. No. 102-166, § 116, 105 Stat. 1071, 1079 (1991).

236. § 703(m), 42 U.S.C. § 2000e-2(m) (2006).

237. Officers for Justice v. Civil Serv. Comm’n, 979 F.2d 721, 725 (9th Cir. 1992).

238. 129 S. Ct. 2658 (2009).
I. Prohibitions and Defenses in Title VII

55

basis in evidence of an impermissible disparate impact” in order to justify discarding the test results.239 This standard is not taken from any of the 

Title VII cases, such as Weber or Johnson, which impose a markedly 

more lenient standard for permissible affirmative action: that it is necessary to remedy “old patterns of segregation and hierarchy” and it does 

not “unnecessarily trammel the interests of the white employees.”240 

Under Weber and Johnson, in contrast to Ricci, the employer need not 

show a substantial threat of liability under the theory of disparate impact.241 It remains to be determined how these variant standards will be 

reconciled.

Constitutional Issues

Sheet Metal Workers242 also presented the constitutional question whether the race-conscious remedies ordered by the district court violated the 

Fifth Amendment. Only Justice Brennan and Justice Powell reached this 

question, and both held that the remedies were constitutional. Justice 

Brennan found the remedies to be justified by overwhelming evidence of 

past discrimination. He also found them to be narrowly tailored to eliminate past discrimination, both because other remedies had proved ineffective and because they only marginally affected the interests of white 

workers.243 Justice Powell essentially followed the same analysis, although he undertook a more searching examination of the preference as a 

narrowly tailored means of eliminating past discrimination.244 One year 

later, the Supreme Court again reached the same conclusion, upholding a 

judicially ordered preference to remedy egregious discrimination in 

United States v. Paradise,

245 a case alleging long-standing racial discrimination by the Alabama state troopers in hiring and promotions.246

 

239. Id. at 2677.

240. United Steelworkers v. Weber, 443 U.S. 193, 208 (1979); Johnson v. Transp. 

Agency, 480 U.S. 616, 629–30 (1987).

241. Weber, 443 U.S. at 212 (Blackmun, J., concurring); Johnson, 480 U.S. at 632–

33 & n. 10.

242. 478 U.S. 421 (1986). 

243. Id. at 481 (opinion of Brennan, J.).

244. Id. at 485–89.

245. 480 U.S. 149 (1987).

246. Id. Justice Brennan wrote for a plurality of four justices, finding egregious discrimination a sufficient ground for judicially ordered preferences. Id. at 166–71. Justice 
Major Issues in the Federal Law of Employment Discrimination

56

The Court addressed the constitutional question more thoroughly in 

Wygant v. Jackson Board of Education,

247 a case concerned with a preference in layoffs established by agreement between a union and a public 

employer. The preference required teachers to be laid off in reverse order 

of seniority unless doing so would reduce the percentage of minority 

teachers, in which case white teachers with greater seniority would be 

laid off instead of minority teachers with less seniority. Because the employer was a public school district, unlike the private employer in Weber, 

the case raised the constitutional question whether the preference violated the Fourteenth Amendment. The Court, again by a divided vote and in 

separate opinions, held that it did, basing the decision on two different 

reasons: (1) the preference was not based on evidence of past employment discrimination by the school district;

248 and (2) it was not narrowly 

tailored to remedy past discrimination because it imposed too great a 

burden upon laid-off white employees.

249 The net effect of these opinions, and the opinions in Sheet Metal Workers, is to emphasize the difference between wholly private preferences adopted voluntarily by private employers and preferences ordered or approved by a court or 

adopted by a public employer. The former are governed by the comparatively lenient standards of Weber. The latter are governed by the stricter 

constitutional standards of Wygant.

Subsequent decisions have taken a more critical view of affirmative 

action, at least when it is initiated by state or local government, but these 

decisions have not directly concerned employment. In City of Richmond 

v. J. A. Croson Co.,

250 a majority of justices held for the first time that 

benign preferences on the basis of race are subject to “strict scrutiny,” 

and so, presumably, would be more difficult to justify.251 That case held 

unconstitutional a local ordinance setting aside a fixed proportion of 

government contracts for minority-owned businesses. The same princi-

 

Stevens concurred in the judgment based on the broad remedial authority of federal 

courts to remedy constitutional violations. Id. at 189–95.

247. 476 U.S. 267 (1986).

248. Wygant, 476 U.S. at 274–76 (opinion of Powell, J.); id. at 294 (O’Connor, J., 

concurring in part and concurring in judgment).

249. Id. at 279–84 (opinion of Powell, J.); id. at 294–95 (White, J., concurring in 

judgment).

250. 488 U.S. 469 (1989).

251. Id. at 493–98 (opinion of O’Connor, J.); id. at 520–21 (Scalia, J., concurring in 

judgment).
I. Prohibitions and Defenses in Title VII

57

ples were extended to federal statutes creating similar preferences in 

Adarand Constructors, Inc. v. Pena,

252 although only after prior decisions had reached contrary results.253 All racial classifications by government—whether federal, state, or local—must meet the same standard 

of “strict scrutiny” under the Constitution.254

Nevertheless, the requirements of strict scrutiny can sometimes be

satisfied, as illustrated by Grutter v. Bollinger.

255 That case upheld an

affirmative action plan for admission to law school based on the compelling interest in diversity in higher education. Although diversity itself is 

seldom offered as a justification for affirmative action in employment, 

the Court emphasized the importance of universities and law schools in 

training the nation’s leaders: “In order to cultivate a set of leaders with 

legitimacy in the eyes of the citizenry, it is necessary that the path to 

leadership be visibly open to talented and qualified individuals of every 

race and ethnicity.”256 This passage supports, but does not require, a 

sympathetic treatment of affirmative action plans in employment that 

have a similar goal. In a subsequent decision,257 involving local school 

districts, the Court took a harder look at race-based student assignments 

and found the justification for this form of affirmative action to be wanting.

One form of affirmative action, however, stands on an entirely different constitutional footing. In Morton v. Mancari,

258 the Supreme Court 

held that a preference for employment of Native Americans in the Bureau of Indian Affairs (BIA) violated neither Title VII nor the Fifth 

Amendment. The Court reasoned that Title VII was not intended to dis-

 

252. 515 U.S. 200, 235–36 (1995) (opinion of O’Connor, J.). Justice Scalia provided 

the crucial fifth vote for the decision in this case. He would have gone further and simply 

prohibited all government classifications on the basis of race. Id. at 239 (Scalia, J., concurring in part and concurring in judgment).

253. Metro Broad., Inc. v. FCC, 497 U.S. 547 (1990) (upholding preference for 

minority-owned businesses in award of broadcast licenses by FCC); Fullilove v. Klutznick, 448 U.S. 448 (1980) (upholding set-aside for minority-owned contractors in local 

public works financed with federal funds).

254. Adarand, 515 U.S. at 235.

255. 539 U.S. 306 (2003).

256. Id. at 335.

257. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 718–

37 (2007).

258. 417 U.S. 535 (1974).
Major Issues in the Federal Law of Employment Discrimination

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turb the long-standing federal policy of preferential employment of Native Americans in the BIA259 because the statute explicitly authorized a 

separate preference for Native Americans on or near Indian reservations.260 The preference did not violate the Fifth Amendment because it 

was “reasonably designed to further the cause of Indian self-government 

and to make the BIA more responsive to the needs of its constituent 

groups.”261 Although the Court characterized the preference as one not 

involving race, it only applied to persons of “one-fourth or more degree 

Indian blood.”262 Based on this reasoning, the decision might be limited 

to the special situation of Indian tribes, as suggested in a decision invalidating a racial classification by the state of Hawaii that favored citizens 

of Hawaiian ancestry.263 It remains difficult, however, to distinguish Native Americans from other racial and ethnic groups, such as Hawaiians, 

without begging the very question at issue. Favorable treatment of Native 

Americans at the level of constitutional standards cannot be used to justify favorable treatment of Native Americans at the concrete level of particular programs of affirmative action. The constitutional decisions on 

affirmative action have not yet developed a satisfactory solution to this 

problem.

EEOC Guidelines

The EEOC has adopted a comprehensive set of guidelines on affirmative 

action264 which provide that preferences are permissible under Title VII 

if three requirements are met: “a reasonable self analysis; a reasonable 

basis for concluding action is appropriate; and reasonable action.”265 A 

reasonable self-analysis attempts to determine whether employment 

practices result in disparate impact or disparate treatment, or whether 

they leave uncorrected the effects of prior discrimination.266 Any finding 

of disparate impact, disparate treatment, or uncorrected effects of prior 

 

259. Id. at 541–45.

260. § 703(i), 42 U.S.C. § 2000e-2(i) (2006). Congress also exempted Native American tribes from the coverage of the statute. § 701(b)(1), 42 U.S.C. § 2000e(b)(1) (2006).

261. Morton, 417 U.S. at 554.

262. Id. at 553 n.24.

263. Rice v. Cayetano, 528 U.S. 495, 524 (2000).

264. 29 C.F.R. pt. 1608 (2010).

265. Id. § 1608.4.

266. Id. § 1608.4(a).
I. Prohibitions and Defenses in Title VII

59

discrimination constitutes a reasonable basis for a preference, but no admission of any violation of Title VII is necessary.267 The preference, in 

turn, must be a reasonable means of remedying the problems revealed by 

the self-analysis.268 Affirmative action plans that comply with these requirements and that are dated and in writing constitute a complete defense to claims of reverse discrimination (typically, claims by white 

males that they are the victims of discrimination in favor of minorities or 

women).

269 However, they do not provide any defense to claims of discrimination by minorities or women that they have been the victims of 

traditional forms of discrimination. Similar consequences follow from 

preferences implemented in various enforcement proceedings under Title 

VII or other federal or state law and, in some circumstances, from unwritten plans.270

The availability of a defense to reverse discrimination claims is the 

most important consequence of compliance with the guidelines. Section 

713(b) of Title VII provides that action “in good faith, in conformity 

with, and in reliance on any written interpretation or opinion of the 

Commission” constitutes a complete defense to claims based on such 

action.271 By its own regulations, the EEOC has defined the written interpretations or opinions that give rise to a defense under § 713(b),272 and

the Guidelines on Affirmative Action explicitly declare themselves to be 

such a written interpretation or opinion.273 Nevertheless, the binding effect of the guidelines is limited by § 713(a), which authorizes the EEOC 

to issue only procedural regulations.274 In Local No. 93, International 

Association of Firefighters v. City of Cleveland,

275 the Supreme Court 

recognized the limited effect of the guidelines. It cited them for the general policy approving settlement of Title VII claims but not for the requirements for permissible affirmative action plans or for the defense 

available under § 713(b). Instead, the Court said that the guidelines were 

 

267. Id. § 1608.4(b).

268. Id. § 1608.4(c). 

269. Id. §§ 1608.4(d), 1608.10(b).

270. Id. §§ 1608.4–.9.

271. § 713(b), 42 U.S.C. § 2000e-12(b)(1) (2006).

272. 29 C.F.R. § 1601.93 (2010).

273. Id. § 1608.2.

274. § 713(a), 42 U.S.C. § 2000e-12(a) (2006).

275. 478 U.S. 501 (1986).
Major Issues in the Federal Law of Employment Discrimination

60

entitled to some deference as a source of experience and informed judgment but that they “do not have the force of law.”276

Seniority Systems

An important exception to the prohibition against discrimination in Title 

VII is the seniority clause of § 703(h). Section 703(h) provides that differences in terms and conditions of employment pursuant to a bona fide 

seniority system do not violate the statute, “provided that such differences are not the result of an intention to discriminate because of race, 

color, religion, sex, or national origin.”277 This exception was at first narrowly construed by the lower federal courts to allow only seniority systems that computed seniority according to time employed at the plant or 

by the employer, excluding from its protection seniority systems limited 

to particular departments or to skilled positions.278 However, in International Brotherhood of Teamsters v. United States,

279 the Supreme Court 

held that it protected all forms of seniority systems. In particular, a seniority system could not be shown to violate the statute under the theory 

of disparate impact. Instead, it was necessary to show that the system 

resulted in disparate treatment and therefore was not “bona fide” or was 

“the result of an intention to discriminate.”280 In subsequent cases, the 

Court applied the exception to a seniority system that distinguished between permanent employees who had worked forty-five weeks in a single calendar year and temporary employees who had not281 and to a seniority system that was established after the effective date of Title VII.282

In both cases, the Court followed its reasoning in Teamsters that the exception applied to all forms of seniority systems.

The Court left unclear, however, how disparate treatment in a seniority system is to be proved. In a procedural ruling, the Court held that the 

district court’s findings on this issue must be accepted on appeal unless 

 

276. Id. at 517.

277. § 703(h), 42 U.S.C. § 2000e-2(h) (2006).

278. Local 189, United Papermakers & Paperworkers v. United States, 416 F.2d 980 

(5th Cir. 1969); Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (E.D. Va. 1968).

279. 431 U.S. 324 (1977).

280. Id. at 353 (internal quotation marks omitted).

281. California Brewers Ass’n v. Bryant, 444 U.S. 598 (1980).

282. Am. Tobacco Co. v. Patterson, 456 U.S. 63 (1982).
I. Prohibitions and Defenses in Title VII

61

clearly erroneous;283 but apart from the suggestion in Teamsters that a 

seniority system was illegal if it had its “‘genesis in racial discrimination,’”284 the Court has not elaborated on the ways in which disparate 

treatment can be established. The disparate impact of a seniority system 

may be difficult to distinguish from disparate treatment. Seniority systems carry forward the effects of past discrimination, for instance, by 

awarding seniority to white employees who benefited from past hiring 

discrimination against blacks. Presumably, Teamsters implies that such 

disparate impact alone does not establish disparate treatment. However, 

evidence of discrimination in other employment practices does give rise 

to an inference of discrimination in the seniority system, and in a particular case other evidence may be decisive, such as replacing a plant-wide 

seniority system with a departmental seniority system as soon as blacks 

have appeared in a job.285

The Court has formulated clear rules on two issues related to seniority systems: statutes of limitations and remedies. In United Air Lines, Inc. 

v. Evans,

286 the Court held that a bona fide seniority system did not preserve a claim that was otherwise barred by the statute of limitations. As 

explained at greater length in the section on statutes of limitations,287 this 

holding applies to discrete discriminatory acts, such as hiring or firing. 

Claims of discrimination in the seniority system itself are now governed 

by a separate provision that starts the limitation period running from the 

latest of three different events identified in the statute: when the seniority system was adopted, when it was applied to the plaintiff, or when the 

plaintiff was injured by its application.

288 The Civil Rights Act of 1991 

 

283. Pullman-Standard v. Swint, 456 U.S. 273 (1982).

284. Teamsters, 431 U.S. at 346 n.28 (emphasis omitted) (quoting Quarles v. Philip 

Morris Inc., 279 F. Supp. 505, 517 (E.D. Va. 1968)).

285. Myers v. Gilman Paper Co., 25 Fair Empl. Prac. Cas. (BNA) 468 (S.D. Ga. 

1981). Several decisions vacated and remanded by the Supreme Court eventually resulted 

in findings that a seniority system was not bona fide. Terrell v. United States Pipe & 

Foundry Co., 644 F.2d 1112 (5th Cir. 1981), vacated and remanded, 456 U.S. 955 

(1982), on remand, 696 F.2d 1132 (5th Cir. 1983), on remand, 39 Fair Empl. Prac. Cas. 

(BNA) 571 (N.D. Ala. 1985); United States v. Georgia Power Co., 634 F.2d 929 (5th Cir. 

1981), vacated and remanded, 456 U.S. 952 (1982), on remand, 695 F.2d 890 (5th Cir. 

1983).

286. 431 U.S. 553 (1977).

287. See infra text accompanying notes 463–67.

288. § 706(e)(2), 42 U.S.C. § 2000e-5(e)(2) (2006).
Major Issues in the Federal Law of Employment Discrimination

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added this provision to liberalize the limitation period for these claims 

and to overrule a more restrictive decision of the Supreme Court.289

On the issue of remedies, Franks v. Bowman Transportation Co.

290

held that § 703(h) does not limit awards of remedial seniority to identified victims of discrimination, either to determine fringe benefits payable 

by the employer or to determine rights in competition with other employees. Instead, the district court’s discretion to award remedial seniority was to be exercised according to the same standard applicable to 

awards of back pay. Remedial seniority was to be denied “‘only for reasons which, if applied generally, would not frustrate the central statutory 

purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination.’”291

Section 703(h) does not limit the broad grant of remedial authority in 

§ 706(g), because it imposes a limit only on the prohibitions against discrimination in §§ 703 and 704.

Sex Discrimination

Five topics in Title VII law largely or exclusively concern claims of sex 

discrimination: the exception for bona fide occupational qualifications,

classifications on the basis of pregnancy, comparable pay for comparable 

work, sex-segregated actuarial tables, and sexual harassment.

Bona Fide Occupational Qualifications

Section 703(e)(1) allows classifications on the basis of “religion, sex, or 

national origin in those certain instances where religion, sex, or national 

origin is a bona fide occupational qualification reasonably necessary to 

the normal operation of that particular business or enterprise.”292 It does 

not allow classifications on the basis of race. The principal application of 

the bona fide occupational qualification (BFOQ) exception has been to 

sex-based classifications.

Both of the Supreme Court decisions on the BFOQ exception under 

Title VII have emphasized that it should be narrowly construed, although 

one held that the BFOQ exception applied to the position in dispute and 

 

289. See infra notes 473–74 and accompanying text.

290. 424 U.S. 747 (1976).

291. Id. at 771 (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975)).

292. § 703(e)(1), 42 U.S.C. § 2000e-2(e)(1) (2006).
I. Prohibitions and Defenses in Title VII

63

the other held that it did not. In the first case, Dothard v. Rawlinson,

293

the Court held that women could be excluded from positions as prison 

guards in close contact with male inmates in the Alabama prison system. 

The Court reasoned that female prison guards would be in danger of sexual assault, at least in the extreme conditions of the prisons in Alabama, 

which had been held to violate the Eighth Amendment in an unrelated 

case.294 The danger of sexual assault would have threatened the general 

security of the prisons by undermining control over the prison population.295 The risk posed by the hiring of female prison guards involved 

more than risks of sexual assault to the women themselves, who would 

have been able to evaluate these risks for themselves in taking the job.

In Dothard, the Court quoted, but did not explicitly endorse, two 

tests for applying the BFOQ exception, both formulated by the Fifth Circuit: whether “‘the essence of the business operation would be undermined by not hiring members of one sex exclusively’”296 and whether the 

employer “‘had reasonable cause to believe, that is, a factual basis for 

believing, that all or substantially all women would be unable to perform 

safely and efficiently the duties of the job involved.’”297 The Court endorsed only the position that the BFOQ exception “was in fact meant to 

be an extremely narrow exception to the general prohibition of discrimination on the basis of sex”298 and that “it is impermissible under Title VII 

to refuse to hire an individual woman or man on the basis of stereotyped 

characterizations of the sexes.”299 Some lower courts have upheld the 

exclusion of guards of one sex from watching inmates of the opposite sex 

by deferring to prison officials in their evaluation of the available evidence,300 while others have required proof that there was no other way to 

protect the privacy or security of inmates.301

 

293. 433 U.S. 321 (1977).

294. Pugh v. Locke, 406 F. Supp. 318 (M.D. Ala. 1976), modified on other grounds, 

559 F.2d 283 (5th Cir. 1977), rev’d in part on other grounds, 438 U.S. 781 (1978).

295. Dothard, 433 U.S. at 336.

296. Id. at 333 (quoting Diaz v. Pan Am. World Airways, 442 F.2d 385, 388 (5th 

Cir.), cert. denied, 404 U.S. 950 (1971)).

297. Id. (quoting Weeks v. S. Bell Tel. & Tel. Co., 408 F.2d 228, 235 (5th Cir. 

1969)).

298. Id. at 334.

299. Id. at 333.

300. Everson v. Michigan Dep’t of Corr., 391 F.3d 737, 750 (6th Cir. 2004) (deferring to prison authorities based on evidence of need); Torres v. Wisconsin Dep’t of 
Major Issues in the Federal Law of Employment Discrimination

64

In its second decision, International Union v. Johnson Controls, 

Inc.,

302 the Supreme Court held that the BFOQ did not allow the exclusion of fertile women from jobs that required exposure to lead in the process of making batteries. The Court applied the same standards as in Dothard but reached a different result because the justification offered by 

the employer for the sex-based exclusion concerned the safety of a fetus, 

not the safety of other employees or customers.303 By contrast, in Dothard, the presence of female prison guards created a risk of disturbances 

that endangered other prison employees and prisoners.304 For the Court, 

the safety of the fetus raised distinctive issues under the Pregnancy Discrimination Act,305 which generally prohibits discrimination on the basis 

of pregnancy, as the next section of this monograph explains. Relying on 

both this act and an analogy to the constitutional decisions on abortion, 

the Court said: “Decisions about the welfare of future children must be 

left to the parents who conceive, bear, support, and raise them rather than 

to the employers who hire those parents.”306

These special features of the case nevertheless do not detract from its 

general significance as a precedent. The case reinforces the point that the 

BFOQ exception is “extremely narrow,” even if its exact scope remains

uncertain. The standards quoted in Dothard and applied in Johnson Controls leave open crucial questions about the legitimate role of sex-based 

differences in defining the “essence of the business operation,” or what 

constitutes “stereotyped characterizations of the sexes.” Several decisions have allowed classifications on the basis of sex to protect the physical privacy of others, for instance, in the job of nurse in a maternity 

 

Health & Social Servs., 859 F.2d 1523, 1532 (7th Cir. 1988) (en banc), cert. denied, 489 

U.S. 1017, 1082 (1989) (reversing and remanding for reevaluation of evidence, giving 

appropriate weight to judgment of prison officials).

301. E.g., Forts v. Ward, 621 F.2d 1210, 1215–17 (2d Cir. 1980); United States v. 

Gregory, 818 F.2d 1114, 1117–18 (4th Cir.), cert. denied, 484 U.S. 847 (1987).

302. 499 U.S. 187 (1991).

303. Id. at 203.

304. Id. at 202. The Court also distinguished cases interpreting the BFOQ under the 

Age Discrimination in Employment Act, 29 U.S.C. § 623(f)(1) (2006), whose language 

tracks the BFOQ under Title VII. Id. at 202–03.

305. § 701(k), 42 U.S.C. § 2000e(k) (2006).

306. Johnson Controls, 499 U.S. at 206.
I. Prohibitions and Defenses in Title VII

65

ward or in a nursing home with mostly female patients.307 These decisions depend on a judgment, but presumably not a stereotype, that members of one sex would violate the privacy of members of the opposite 

sex, even though they might be otherwise able to perform the job.

Other cases have gone beyond the literal terms of the BFOQ exception and allowed classifications on the basis of sex as conditions of employment, not as qualifications for employment. The best known of these 

concern claims that an employer’s rules allowing women, but not men, to 

have long hair violate Title VII.308 Courts have allowed such rules despite the fact that hair length is irrelevant to the performance of most 

jobs. Again, however, the decisions concerned with sex-based dress requirements have prohibited sexually revealing costumes when they are 

required only of women.309 The principal problem in applying the BFOQ 

exception, and in extending it to conditions of employment, is identifying 

the narrow range of cases in which judgments about sex-based roles are 

legitimate.

A cautionary note about the BFOQ exception is necessary. The language of the exception—allowing classifications “reasonably necessary 

to the normal operation of that particular business or enterprise”—invites 

confusion with the defendant’s burden of showing job relationship and 

business necessity under the theory of disparate impact. Although the 

defendant bears the burden of proof on both issues,310 the similarity ends 

there. The BFOQ exception provides a justification for occupational 

qualifications explicitly based on sex, national origin, or religion.311 By 

contrast, the defendant’s burden of proof under the theory of disparate 

impact applies to neutral employment practices.

 

307. E.g., Fesel v. Masonic Home of Del., Inc., 447 F. Supp. 1346 (D. Del. 1978), 

aff’d per curiam, 591 F.2d 1334 (3d Cir. 1979); EEOC v. Mercy Health Ctr., 29 Fair 

Empl. Prac. Cas. (BNA) 159 (W.D. Okla. 1982).

308. Willingham v. Macon Tel. Publ’g Co., 507 F.2d 1084 (5th Cir. 1975).

309. EEOC v. Sage Realty Corp., 507 F. Supp. 599, 608–11 (S.D.N.Y. 1981).

310. Rosenfeld v. S. Pac. Co., 444 F.2d 1219 (9th Cir. 1971); see Johnson Controls,

499 U.S. at 206 (“We have no difficulty concluding that Johnson Controls cannot establish a BFOQ”). The defendant’s burden of proof under the theory of disparate impact is 

determined by §§ 701(m), 703(k)(1)(A)(i), 42 U.S.C. § 2000e(m), 2000e–2(k)(1)(A)(i) 

(2006).

311. Arizona Governing Comm. v. Norris, 463 U.S. 1073, 1084 n.13 (1983) (opinion of Marshall, J.); see Johnson Controls, 499 U.S. at 200.
Major Issues in the Federal Law of Employment Discrimination

66

Pregnancy

The Supreme Court originally examined discrimination on the basis of 

pregnancy in constitutional cases. The Court first held that a public employer could not impose mandatory pregnancy leaves of fixed duration, 

because they rested on an unconstitutional, unrebuttable presumption, 

namely that women in the later stages of pregnancy are physically unable 

to serve as teachers.312 But in Geduldig v. Aiello,

313 the Court held that 

classifications on the basis of pregnancy simply were not classifications 

on the basis of sex. It reasoned that the exclusion of pregnancy from a 

state disability program was not an exclusion based on sex because it did

not distinguish women from men but only pregnant persons from nonpregnant persons.314 In two subsequent cases, the Court applied this reasoning to Title VII, holding that employers could exclude pregnancy 

from disability and sick leave plans.315

In response to these decisions, Congress enacted the Pregnancy Discrimination Act of 1978,316 which overruled the Court’s pregnancy decisions under Title VII. It did so by rejecting both the reasoning and the 

holdings of these decisions. It rejected the reasoning by defining “because of sex” or “on the basis of sex” to include “because of or on the 

basis of pregnancy, childbirth, or related medical conditions.”317 It rejected the holdings by generally requiring that pregnant women be “treated 

the same for all employment-related purposes” as others “similar in their 

ability or inability to work” and by specifically applying this requirement 

to “receipt of benefits under fringe benefit programs.”318

Several questions about discrimination on the basis of pregnancy 

were left unresolved by the Pregnancy Discrimination Act (PDA). First, 

does Geduldig have any remaining precedential effect in constitutional 

law? This question is theoretically interesting but of little practical con-

 

312. Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974).

313. 417 U.S. 484 (1974).

314. Id. at 496 n.20.

315. General Elec. Co. v. Gilbert, 429 U.S. 125 (1976); Nashville Gas Co. v. Satty, 

434 U.S. 136, 143–46 (1977). In the latter case, however, the Court held that denial of 

accrued seniority because of pregnancy was prohibited by Title VII because it had a disparate impact on women. Nashville Gas, 434 U.S. at 141–43.

316. § 701(k), 42 U.S.C. § 2000e(k) (2006).

317. Id. (internal quotation marks omitted).

318. Id.
I. Prohibitions and Defenses in Title VII

67

sequence, since most classifications on the basis of pregnancy by public 

employers are prohibited by the PDA.319

Second, are classifications on the basis of pregnancy subject to the 

BFOQ exception of § 703(e)? Federal courts have answered this question 

in the affirmative, on the ground that the primary effect of the PDA was 

to make classifications on the basis of pregnancy equivalent to classifications on the basis of sex.320 The scope of the BFOQ exception as applied 

to pregnancy remains difficult to determine, as International Union v. 

Johnson Controls, Inc.321 illustrates. The Court held that women could be 

excluded from jobs based on actual or potential pregnancy only if the 

exclusion conformed both to the terms of the BFOQ exception and to the 

purposes of the PDA.

Third, does Title VII require an employer to provide benefits for 

pregnancy to wives of male employees when it provides general disability benefits to husbands of female employees? The Supreme Court resolved this question in favor of requiring such benefits, but it emphasized 

that employers remain free to deny all benefits for spouses of employees.322 This point distinguishes the PDA from broader legislation that 

requires employers to grant leave to their employees for pregnancy and 

other family matters.323 State laws that require pregnancy leave also have 

been upheld against arguments that they are preempted by Title VII.324

Comparable Worth

The question whether Title VII requires comparable pay for jobs of comparable worth concerns the relationship between Title VII and the Equal 

 

319. Since 1972, Title VII has covered public employers. §§ 701(b), (f), (h) and 

701-17(a), 42 U.S.C. §§ 2000e(b), (f), (h), and 2000e-16(a) (2006).

320. E.g., Levin v. Delta Air Lines, Inc., 730 F.2d 994, 996–98 (5th Cir. 1984); Harriss v. Pan Am. World Airways, 649 F.2d 670, 676–77 (9th Cir. 1980).

321. 499 U.S. 187 (1991).

322. Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 684 n.25 

(1983). Along the same lines, one court has held that the theory of disparate impact is not 

available to change a neutral absenteeism policy as applied to pregnant employees. Dormeyer v. Comerica Bank-Illinois, 223 F.3d 579, 583–84 (7th Cir. 2000). By contrast, 

another court has extended the reasoning of Newport News to require employers to provide contraceptive coverage under general medical insurance plans. Erickson v. Bartell 

Drug Co., 141 F. Supp. 2d 1266 (W.D. Wash. 2001).

323. E.g., The Family and Medical Leave Act, 29 U.S.C. §§ 2601–2654 (2006).

324. California Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 285 (1987).
Major Issues in the Federal Law of Employment Discrimination

68

Pay Act and, specifically, the effect of the equal pay clause in § 703(h), 

usually called the “Bennett Amendment.” The Bennett Amendment provides that an employer may “differentiate upon the basis of sex” in compensating its employees “if such differentiation is authorized by” the 

Equal Pay Act.325 The Equal Pay Act, in turn, requires equal pay for men 

and women for equal work in the same establishment “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.”326 The language of the Bennett Amendment creates an obvious 

problem. It presupposes that some differences in compensation on the 

basis of sex are “authorized” by the Equal Pay Act, but upon examination, the Equal Pay Act does not explicitly authorize any differences in 

compensation on the basis of sex. Indeed, it does not even mention any 

permissible differences in compensation on the basis of sex.

The Supreme Court addressed this problem in County of Washington 

v. Gunther.

327 It held that the only differences in compensation “authorized” by the Equal Pay Act were those within its exceptions (i) through 

(iv). This holding is not free from difficulty, since exceptions (i), (ii), and 

(iii) are nearly the same as exceptions to Title VII contained elsewhere in 

§ 703(h),328 and exception (iv) appears only to emphasize that the Equal 

Pay Act does not prohibit differences in pay on a basis other than sex, a 

limitation that applies equally to the prohibition against sex discrimination in Title VII. The Court’s interpretation of the Bennett Amendment 

appears to make the amendment entirely redundant. To counter this objection, the Court suggested, but did not decide, that the Bennett 

Amendment requires proof of disparate treatment, not just disparate

impact, because it incorporates exception (iv) of the Equal Pay Act into 

Title VII.329

 

325. § 703(h), 42 U.S.C. § 2000e-2(h) (2006).

326. 29 U.S.C. § 206(d)(1) (2006).

327. 452 U.S. 161 (1981).

328. § 703(h), 42 U.S.C. § 2000e-2(h) (2006).

329. Gunther, 452 U.S. at 170–71. This reasoning would be affected by legislation 

changing the scope of defense (iv) under the Equal Pay Act. See infra text accompanying 

notes 954-55.
I. Prohibitions and Defenses in Title VII

69

The significance of Gunther lies in the greater scope that it gives to 

claims of sex discrimination in compensation under Title VII as compared with similar claims under the Equal Pay Act. The Equal Pay Act 

requires only equal pay for equal work. If the jobs of men and women 

are not substantially equal in skill, effort, responsibility, and working 

conditions, as those terms are technically defined under the Equal Pay 

Act, then the employer is under no obligation to pay men and women 

equally. After Gunther, Title VII imposes an unconditional obligation on 

employers not to discriminate in compensation on the basis of sex.330

The breadth of the employer’s obligation under Title VII, however, 

remains an open question. The decision in Gunther was narrowly based 

on rather peculiar facts. The plaintiffs were female guards at a county jail 

who were paid less than male guards. Although they performed different 

tasks than male guards did, and so did not perform substantially equal 

work as required by the Equal Pay Act, they claimed that the county discriminated against them by paying them less than it paid male guards. 

Most of the evidence of discrimination, however, came from the county’s 

own study of the compensation of male and female prison guards. As the 

Court emphasized, the case did not require an independent judicial comparison of the worth of different jobs.331 Consequently, Gunther only 

opened the door to claims of comparable worth under Title VII. Some 

circuits have concluded that it does not open the door very far, relying on 

the Court’s suggestion that the theory of disparate impact might not apply to claims of comparable worth.332

Sex-Segregated Actuarial Tables

Insurance companies commonly use sex-segregated actuarial tables to 

estimate the life expectancy of persons covered by life insurance policies 

and annuities. Such tables reflect the apparently greater life expectancy 

of women than men, and they result in women paying less than men for 

an equal amount of life insurance but more for an annuity that results in 

equal monthly benefits. Employers have also used sex-segregated actuarial tables in life insurance and pension plans in fringe benefits plans. This 

 

330. Corning Glass Works v. Brennan, 417 U.S. 188 (1974).

331. Gunther, 452 U.S. at 181.

332. AFSCME v. Washington, 770 F.2d 1401, 1405–08 (9th Cir. 1985) (Kennedy, 

J.); Loyd v. Phillips Bros., 25 F.3d 518, 525 (7th Cir. 1994).
Major Issues in the Federal Law of Employment Discrimination

70

practice has given rise to claims that use of sex-segregated actuarial tables constitutes sex discrimination in violation of Title VII. 

The Supreme Court resolved such claims in City of Los Angeles Department of Water & Power v. Manhart,

333 holding that Title VII prohibits employers from using sex-segregated actuarial tables. The Court reasoned that Title VII prohibits all classifications on the basis of sex unless 

specifically exempted. Sex-segregated actuarial tables were prohibited 

because they were not allowed by any of the exceptions to Title VII, in 

particular, the exceptions in the Equal Pay Act incorporated in Title VII 

by the Bennett Amendment.334

The Court appeared to allow sex-based classifications in actuarial 

tables in only two situations related to employment. First, since Title VII 

only regulates the relationship between employer and employee, an employer remains free to pay cash to employees, who can then purchase life 

insurance or annuities from independent insurance companies.335 However, as the Supreme Court has subsequently held, any use of sexsegregated actuarial tables in an employer’s fringe benefit plan, even if it 

is administered by an insurance company, violates Title VII.336 Second, 

the Court allowed an employer to take into account the proportion of 

men and women in its workforce in computing unisex actuarial tables.337

This use of sex-based classification is needed to ensure the solvency of 

insurance and pension plans, at least in the absence of any practical predictor of life expectancy that is better than sex. For similar reasons, the 

Court has refused to make its decisions on this issue retroactive, applying 

them only to payments based on contributions made after the decisions 

were rendered.338

Sexual Harassment

The decisions on sexual harassment raise two distinct but related issues: 

First, what constitutes sexual harassment? Second, when is the employer 

 

333. 435 U.S. 702 (1978).

334. Id. at 712–13.

335. Id. at 717–18.

336. Arizona Governing Comm. v. Norris, 463 U.S. 1073, 1089 (1983) (per curiam); 

Florida v. Long, 487 U.S. 223, 238 (1988).

337. Manhart, 435 U.S. at 718.

338. Id. at 718–23; Arizona Governing Comm., 463 U.S. at 1075.
I. Prohibitions and Defenses in Title VII

71

liable for it? In Meritor Savings Bank v. Vinson,

339 the Supreme Court 

addressed both issues but definitively resolved only the first. On that issue, the Court followed the EEOC guidelines in recognizing claims for 

sexual harassment based on a hostile work environment, in addition to 

those involving a “tangible employment action,” such as a raise or a loss 

in pay. The plaintiff in Meritor alleged that her supervisor engaged in a 

pattern of extended and explicit sexual harassment, including several 

instances of rape. The Court held that these allegations were sufficient to 

state a claim for relief, even if the plaintiff did not suffer any tangible 

economic loss from her supervisor’s advances. The plaintiff need only 

prove that the sexual advances and comments were unwelcome and were 

“sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] 

employment and create an abusive working environment.’”340 The Court 

distinguished claims of this kind, alleging a hostile environment, from 

those involving tangible economic loss but allowed recovery for both. 

An employee need not suffer the loss of pay, benefits, or the job itself in 

order to have a claim for sexual harassment. All that is needed is a 

change in working conditions.

On the second issue, the Meritor decision was not conclusive. The 

distinction between the two forms of sexual harassment made a difference both in what constitutes prohibited harassment and in determining 

the vicarious liability of the employer. The latter issue was addressed, 

but not definitively resolved, in Meritor. The Court reversed the ruling of 

the court of appeals imposing liability automatically upon the employer, 

looking instead to common law principles of agency to place some limits 

on the employer’s liability for the acts of its employees.341 This issue of 

agency is significant because Title VII does not prohibit discrimination 

by employees, only discrimination by employers as defined by the statute, including “any agent” of such an employer.342 If the harassing employee is acting as an agent of the employer, then the employer is liable, 

and according to the literal terms of the statute, so is the employee. Some 

courts, however, have held that an individual agent of an employer can-

 

339. 477 U.S. 57 (1986).

340. Id. at 67 (quoting Henson v. Dundee, 682 F.2d 897, 904 (11th Cir. 1982)).

341. Id. at 71–72.

342. §§ 701(b), 703(a), 42 U.S.C. §§ 2000e(b), 2000e–2(a) (2006).
Major Issues in the Federal Law of Employment Discrimination

72

not be held personally liable at all under Title VII,343 relying on provisions of the Civil Rights Act of 1991 that imposed limited liability for 

damages, depending upon the size of the employer.344 These decisions 

have reasoned that if small employers have reduced liability, then individual employees should have none at all. In any event, if the harassing 

employee is not an agent of the employer, then neither the employer nor 

the employee is liable under Title VII, although it remains possible that 

either or both may be liable under state law.345

The Supreme Court has resolved some of the disputes over liability 

of employers for sexual harassment. In Burlington Industries, Inc. v. 

Ellerth,

346 the plaintiff was allegedly harassed by a supervisor, who 

threatened her with various adverse decisions, such as the denial of a 

raise or a promotion, unless she gave in to his advances. None of his 

threats were carried out, however, resulting in no “tangible employment 

action.” According to the Court, her claim therefore had to be analyzed 

as one for sexual harassment based on a hostile environment. Under Meritor, this required her to prove that the alleged harassment was “severe or 

pervasive.”347 This analysis also allowed the employer to avoid liability 

if it met both elements of an affirmative defense: “(a) that the employer 

exercised reasonable care to prevent and correct promptly any sexually 

harassing behavior, and (b) that the plaintiff employee unreasonably 

failed to take advantage of any preventive or corrective opportunities 

provided by the employer or to avoid harm otherwise.”348 If the employer 

failed to establish this defense, then it was vicariously liable for the alleged harassment. As the Supreme Court formulated the defense, the employer must prove two distinct elements; establishing its own reasonable 

care under the first element is not enough. The employer must also estab-

 

343. E.g., Miller v. Maxwell’s Int’l Inc., 991 F.2d 583, 587–88 (9th Cir. 1993), cert. 

denied, 510 U.S. 1109 (1994); Lowry v. Clark, 843 F. Supp. 228, 229–31 (E.D. Ky. 

1994). Other courts have disagreed. E.g., Bridges v. Eastman Kodak Co., 800 F. Supp.

1172, 1179–80 (S.D.N.Y. 1992); Raiser v. O’Shaughnessy, 830 F. Supp. 1134, 1137 

(N.D. Ill. 1993).

344. 42 U.S.C. § 1981a (2006).

345. Barbara Lindemann & David D. Kadue, Sexual Harassment in Employment 

Law ch. 15 (1992 & Supp. 1999).

346. 524 U.S. 742 (1998).

347. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986).

348. Burlington Indus., 524 U.S. at 765.
I. Prohibitions and Defenses in Title VII

73

lish the plaintiff’s own failure to use reasonable care under the second 

element.349

In a companion case, Faragher v. City of Boca Raton,

350 the Court 

clarified the first element of the defense, holding that it had not been satisfied by an employer who had a policy against sexual harassment but 

failed to implement it effectively. The employer, a city parks and recreation department, had not disseminated its sexual harassment policy widely enough so that it could reach the relatively remote location, a lifeguard 

station, where the plaintiffs worked. The employer also had failed to assure employees that they could bypass their immediate supervisors in 

complaining about harassment by the supervisors themselves, as alleged 

in this case. Because of the size of the employer and its widely dispersed 

operations, it was required to take more elaborate steps to publicize and 

implement its policy than a small employer with a single workplace 

would. Although the plaintiffs made only minimal efforts to complain 

about the harassing conduct, this was an issue only under the second element of the defense. Because the employer had not established the first 

element, it could not take advantage of the defense at all and accordingly 

was held liable for the supervisors’ harassment.

When the affirmative defense recognized in Burlington Industries

and Faragher is not available, the employer might be exposed to either 

greater or lesser liability. Liability is greater in cases in which the plaintiff proves that the harassment was accompanied by a “tangible employment action.” A finding to this effect results in strict liability of the employer without any affirmative defense. Because a finding of tangible 

employment action has such significant consequences, the Court defined 

the term with some care in Burlington Industries. As an initial matter, it 

means something different from “quid pro quo” sexual harassment, a 

term used in prior cases to describe demands for sexual favors accompanied by threats or promises of employment-related benefits. As the facts 

 

349. Some courts nevertheless have expressed doubts about whether the employer 

must make out both elements of the defense in order to prevail. For examples of the differing positions, see Harrison v. Eddy Potash, 248 F.3d 1014, 1026 (10th Cir. 2001) 

(employer must make out both elements of defense); Indest v. Freeman Decorating, Inc.,

164 F.3d 258, 266 (5th Cir. 1999) (opinion of Jones, J.) (employer need only prove its 

own reasonable care), on subsequent publication of separate opinion, 168 F.3d 795, 796 

(5th Cir. 1999) (Weiner, J., specially concurring) (employer must make out both elements 

of defense).

350. 524 U.S. 775 (1998).
Major Issues in the Federal Law of Employment Discrimination

74

of Burlington Industries make clear, an unfulfilled threat does not constitute a tangible employment action. Typically, a tangible employment 

action involves “hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant 

change in benefits.”351 Because “failing to promote” appears on this list, 

a significant change in benefits apparently must be judged according to 

the baseline of the benefits that would have been received in the absence 

of the alleged harassment. Somewhat paradoxically, inaction can be sufficient to create a “tangible employment action.”352

Other forms of harassment by supervisors can also result in liability 

of the employer without any affirmative defense. If the harassing supervisor is sufficiently high in the management of a corporate employer, his 

actions are directly attributed to the corporation because he acts as its 

alter ego.353 Thus, harassment by the company’s president constitutes 

harassment by the company itself. So, too, harassment explicitly permitted or condoned by the employer results in direct liability, although such 

cases rarely arise in practice.354

At the opposite extreme, an employer is liable for harassment by coworkers only if it is negligent in allowing the harassment to take place. 

Both Burlington Industries and Faragher are concerned solely with harassment by supervisors and other managers of the employer. Employees 

with the same status as the plaintiff are mentioned only in passing, but in 

terms that restrict the employer’s liability to negligence in monitoring 

their conduct.355 Because co-workers exercise no authority over the 

plaintiff, the employer cannot be subjected to vicarious liability on the 

ground that such employees acted as agents within the scope of their employment. The employer’s liability is limited to negligence in allowing a 

hostile working environment to persist. The entire burden of proof concerning the issue of reasonable care is therefore on the plaintiff, in con-

 

351. Burlington Indus., 524 U.S. at 761.

352. Id. A constructive discharge constitutes a tangible employment action, however, only if it results from official action of the employer, such as a demotion or a cut in 

pay. Pennsylvania State Police v. Suders, 542 U.S. 129 (2004).

353. Burlington Indus., 524 U.S. at 758.

354. Id.

355. Faragher, 524 U.S. at 799. For a case involving harassment by co-workers that 

has reached this conclusion, see Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766–67 

(2d Cir. 1998).
I. Prohibitions and Defenses in Title VII

75

trast to the affirmative defense recognized in Burlington Industries and 

Faragher.

In addition to formulating standards for imposing liability upon employers, the Supreme Court has sought to clarify the standards for determining what constitutes sexual harassment in the first place. The conduct 

must be subjectively “unwelcome” to the plaintiff, and in hostile environment cases, objectively “severe or pervasive.” Only egregious conduct meets the latter requirement, but as the Court made clear in Harris 

v. Forklift Systems, Inc.,

356 the plaintiff need not introduce evidence of 

psychological injury in order to establish a hostile environment. As Justice O’Connor said, speaking for the Court, “Title VII comes into play 

before the harassing conduct leads to a nervous breakdown.”357 She also 

strongly suggested that the standards for sexual harassment be determined according to the viewpoint of a “reasonable person,” instead of a 

“reasonable woman” or a “reasonable man,” depending on the gender of 

the plaintiff.358

The latter possibility was taken up in Oncale v. Sundowner Offshore 

Services, Inc.,

359 in which the Supreme Court recognized a claim by a 

male plaintiff alleging sexual harassment by other male employees. Although this form of harassment is atypical, Title VII does not distinguish 

between male and female employees, either as victims of sexual harassment or as perpetrators.360 Exactly when conduct between employees of 

the same sex becomes sexual harassment presents a more difficult practical question. The Court again stated that the question must be resolved 

by determining whether a “reasonable person” would find the harassing 

conduct to be so severe or pervasive as to alter the conditions of employment, and emphasized that such an inquiry depends upon all of the 

surrounding circumstances.361 This reasoning has not been extended, 

however, to protect against harassment on the basis of sexual orienta-

 

356. 510 U.S. 17 (1993).

357. Id. at 22.

358. The Court used the phrase “reasonable person” twice in stating the standard for 

liability, and Justice Ginsburg did so again in her concurring opinion. Id. at 21, 22; id. at 

25 (Ginsburg, J., concurring).

359. 523 U.S. 75 (1998).

360. Id. at 78–80.

361. Id. at 81.
Major Issues in the Federal Law of Employment Discrimination

76

tion.362 Judicial efforts to achieve these results must take account of proposals to amend Title VII to prohibit discrimination on this ground, 

which have been actively considered in recent sessions of Congress.

363

The difficulty of establishing “severe or pervasive” harassment of 

any kind based on a single comment was indirectly addressed by the Supreme Court in Clark County School District v. Breeden.

364 That case 

concerned a claim of retaliation for complaining about an alleged incident of sexual harassment involving the reaction of two co-workers to a 

remark reportedly made by a prospective applicant for employment. The 

applicant’s file was under evaluation by the plaintiff (a woman) and two 

male co-workers. In the plaintiff’s presence, the male co-workers chuckled in response to a crude description of sexual activity made by the applicant and contained in his application file. The Supreme Court, summarily reversing the decision below, held that their reaction to this 

comment could not reasonably form the basis for a complaint of sexual 

harassment and that, accordingly, the plaintiff had no claim of retaliation 

for protesting about their behavior to her employer. The plaintiff, according to the Court, had protested what was, “at worst an ‘isolated inciden[t]’ that cannot remotely be considered ‘extremely serious’ as our 

cases require.”365

National Origin Discrimination

The prohibition in Title VII against discrimination on the basis of national origin raises three issues, the first more theoretical than the other two. 

The first concerns the BFOQ exception for national origin. There is no 

corresponding exception for race, yet classifications on the basis of race 

closely resemble those on the basis of national origin. Congress has left 

 

362. Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000); Higgins v. New Balance 

Athletic Shoes, Inc., 194 F.3d 252, 259 (1st Cir. 1999). Oncale has also been interpreted 

not to allow a claim against an “equal opportunity” harasser, who engages in the same 

harassment of men and women. Holman v. Indiana, 211 F.3d 399, 404 (7th Cir. 2000). 

Oncale has been interpreted, however, to allow a claim by a man who alleged that he was 

harassed because he was effeminate. Nichols v. Azteca Rest. Enters. Inc., 256 F.3d 864, 

874 (9th Cir. 2001) (relying also on decision on sexual stereotyping). 

363. The Employment Non-Discrimination Act of 2009 (ENDA), H.R. 3017, 111th 

Cong., 1st Sess (2009).

364. 532 U.S. 268 (2001) (per curiam).

365. Id. at 271 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)).
I. Prohibitions and Defenses in Title VII

77

the different approach to these two, very similar forms of discrimination 

to be explained and reconciled by the courts. The second issue concerns 

the uncertain relationship between national origin and citizenship. The 

law is now clear that Title VII does not prohibit discrimination based on 

citizenship, or more precisely, lack of citizenship, which often disqualifies an individual from working under the immigration laws. Nevertheless, status as an alien is inevitably intertwined with national origin because virtually all aliens have a foreign national origin. The third issue 

concerns the impact of “English only” rules in the workplace. Speaking a 

foreign language again correlates strongly with foreign national origin, 

so that a seemingly neutral requirement that all employees speak English 

imposes a significant disadvantage on certain ethnic minorities, such as 

Hispanics.

The BFOQ for national origin squarely raises the issue of how discrimination on this ground differs from discrimination on the basis of 

race. The BFOQ for national origin, like the BFOQ for sex, is available 

only when an otherwise prohibited characteristic is “a bona fide occupational qualification reasonably necessary to the normal operation of that 

particular business or enterprise.”366 The BFOQ creates a narrow exception to the prohibitions against discrimination on the basis of sex, national origin, and religion, but not to the prohibition against discrimination 

on the basis of race. The omission of a BFOQ for race reflects a deliberate congressional decision to prohibit all racial classifications in employment. It also creates the anomaly that some classifications on the 

basis of national origin are permissible while similar classifications on 

the basis of race are not. At least in constitutional law, the two forms of 

discrimination have been considered so similar that the prohibitions 

against each have been regarded as equivalent.367

As a matter of legal doctrine, the anomaly created by the BFOQ for 

national origin has been almost entirely eliminated by decisions giving 

the BFOQ an exceedingly narrow interpretation. The narrowness of the 

BFOQ has been discussed earlier in its application to sex discrimina-

 

366. § 703(e)(1), 42 U.S.C. § 2000e-2(e)(1) (1988); 110 Cong. Rec. 2550, 7271 

(1964).

367. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 287–99 (1978) (opinion of Powell, J.); id. at 355–62 & n.34 (opinion of Brennan, White, Marshall, and 

Blackmun, JJ.); Korematsu v. United States, 323 U.S. 214 (1944); Hirabayashi v. United 

States, 320 U.S. 81 (1943).
Major Issues in the Federal Law of Employment Discrimination

78

tion,368 and it is even more pronounced with respect to national origin. 

The Supreme Court has never upheld a BFOQ for national origin; it has 

only suggested in dictum that the BFOQ might justify a requirement that 

executives of a subsidiary of a Japanese corporation be of Japanese 

origin.369 Few lower courts have followed up on this suggestion,370 apparently because of the difficulty of distinguishing between racial discrimination and national origin discrimination. Although the distinction 

might be easily drawn in theory—distinguishing Japanese, for instance, 

from all other Asians—it remains unsettling in practice. It does not readily justify allowing one form of discrimination under the BFOQ when the 

other, nearly identical, form of discrimination is subject to an absolute 

prohibition.

A similar issue concerns the relationship between national origin and 

citizenship. In Espinoza v. Farah Manufacturing Co.,

371 the Supreme 

Court held that discrimination against aliens did not constitute discrimination on the basis of national origin. The employer, Farah Manufacturing Co., had located its plant near the Mexican border but refused to employ aliens and, in particular, persons of Mexican citizenship. 

Nevertheless, of those employed at the plant, 96% were American citizens of Mexican national origin. On these facts, the Court held that the 

exclusion of aliens from employment did not violate Title VII. Disparate 

treatment on the basis of alienage is not prohibited by Title VII, and at 

least in this case, it resulted in no disparate impact upon persons of Mexican national origin, because they constituted the overwhelming majority 

of those employed at the plant.372 In other cases, however, disparate 

 

368. See supra text accompanying notes 292-311.

369. Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 189 n.19 (1982). This 

decision also raises the further question of the relationship between Title VII and “treaties 

of freedom and navigation” that allow foreign corporations in the United States to give 

preferential treatment to citizens of their own country. See id. at 178–80; MacNamara v. 

Korean Air Lines, 863 F.2d 1135, 1138–41 (3d Cir. 1988), cert. denied, 493 U.S. 944 

(1989) (treaty provision that employers may select managers based on citizenship does 

not conflict with Title VII but would conflict with and preempt Title VII if it resulted in 

disparate impact on basis of race or national origin).

370. Tram N. Nguyen, Note, When National Origin May Constitute a Bona Fide 

Occupational Qualification: The Friendship, Commerce, and Navigation Treaty as an 

Affirmative Defense to a Title VII Claim, 37 Colum. J. Transnat’l L. 215, 245–47 (1998).

371. 414 U.S. 86 (1973).

372. Id. at 93.
I. Prohibitions and Defenses in Title VII

79

treatment on the basis of alienage may result in disparate impact on the 

basis of national origin. The practical problem arises in applying the theory of disparate impact to such cases and, in particular, defining the labor 

market so as to exclude aliens that the employer cannot legally hire. 

The specific problem in Espinoza was addressed by Congress in a 

comprehensive revision of the immigration and naturalization laws, the 

Immigration Reform and Control Act of 1986 (IRCA).

373 The IRCA contained two complicated prohibitions against employment discrimination. 

The first was designed mainly to protect aliens who were lawfully in this 

country and had the right to work here despite their status as aliens. The 

prohibition, however, applied more broadly, to all “protected individuals,” which includes citizens and several technically defined categories of 

aliens. Everyone in these groups is protected from discrimination on the 

basis of “citizenship status.”374 The second prohibition is against discrimination on the basis of national origin, but only by employers who are not 

covered by Title VII because they have fewer than fifteen employees.375

Both prohibitions apply only to employers who have at least four employees.376

Another distinctive issue about national origin concerns the languages associated with particular ethnic groups. The most controversial 

cases concern “English only” rules in the workplace. The EEOC has taken the position that a requirement that employees speak English at all 

times, even on breaks, will be presumed to be discriminatory and that a 

requirement that employees speak English only at specified times, typically while actually working, must be justified by business necessity.377

The courts of appeals that have addressed this issue have disagreed with 

the EEOC, at least as to rules of the latter kind. They have applied the 

theory of disparate impact to such rules but found that the plaintiff failed 

to show any adverse impact from restrictions on speaking a foreign lan-

 

373. Pub. L. No. 99-603, 100 Stat. 3359 (1986) (codified as amended at 8 U.S.C. 

and scattered sections of 7, 18, 20, 29, and 42 U.S.C. (2006)).

374. Immigration and Nationality Act §§ 274B(a)(1), 316(a), 8 U.S.C. §§ 1324b(a)(1),

1427(a) (2006).

375. Id. § 274B(a)(2)(B), 8 U.S.C. § 1324b(a)(2)(B).

376. Id. §§ 274B(a)(2), 316(a), 8 U.S.C. §§ 1324b(a)(2), 1427(a).

377. 29 C.F.R. § 1606.7 (2010).
Major Issues in the Federal Law of Employment Discrimination

80

guage, usually Spanish, during working time.378 The disagreement, as in 

many issues of employment discrimination law, concerns the burden of 

proof. The EEOC places the burden of proof on the defendant to justify a 

practice with a disparate impact on an ethnic minority, while the courts 

impose it on the plaintiff to prove some substantial disadvantage suffered 

from a prohibition on speaking a second language.

Religious Discrimination

The prohibition in Title VII against discrimination on the basis of religion is subject to the BFOQ exception,379 but it is also subject to three 

other provisions that apply only to religious discrimination. Section 702 

creates an exception for employment by religious organizations and 

schools “of individuals of a particular religion to perform work connected with the carrying on” of their activities;380 § 703(e)(2) creates a similar, and seemingly redundant, exception for religious schools;381 and 

§ 701(j) defines “religion” to include “all aspects of religious observance 

and practice, as well as belief, unless an employer demonstrates that he is 

unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the 

conduct of the employer’s business.”382 All of these provisions raise constitutional issues under the religion clauses of the First Amendment and 

have been interpreted to avoid constitutional doubts about their validity.

The exceptions for religious discrimination by religious organizations and schools in §§ 702 and 703(e)(2) do not, according to their literal terms, allow discrimination on other grounds. Nevertheless, the Supreme Court has recognized a constitutionally based exception for employment of ministers. In a case under the ADA, Hosanna-Tabor Evan-

 

378. Garcia v. Spun Steak Co., 998 F.2d 1480, 1485–90 (9th Cir. 1993), cert. denied, 512 U.S. 1228 (1994); Garcia v. Gloor, 618 F.2d 264, 270 (5th Cir. 1980), cert. 

denied, 449 U.S. 1113 (1981).

379. § 703(e)(1), 42 U.S.C. § 2000e-2(e)(1) (2006).

380. § 702, 42 U.S.C. § 2000e-1 (2006).

381. § 703(e)(2), 42 U.S.C. § 2000e-2(e)(2) (2006). Section 702 originally was restricted to employees working in religious activities, but § 703(e)(2) was not. In 1972, 

however, § 702 was expanded to cover all the activities of religious organizations and 

schools. H.R. Rep. No. 92-899, at 16 (1972). This change made the exception in §

703(e)(2) for educational institutions largely redundant.

382. § 701(j), 42 U.S.C. § 2000e(j) (2006).
I. Prohibitions and Defenses in Title VII

81

gelical Lutheran Church and School v. EEOC,383 the Court held that the 

Religion Clauses of the First Amendment “bar the government from interfering with the decision of a religious group to fire one of its ministers.”384 The Court endorsed lower court decisions that had recognized a 

“ministerial exception” to laws against employment discrimination but 

declined “to adopt a rigid formula for deciding when an employee qualifies as a minister.”385 The employee in that case, Perich, was a teacher in 

a religious school who had been “called” to the ministry by a Lutheran 

church. She covered religious material in her teaching, but no more than 

a secular teacher would have in the same position. The Court found four 

factors decisive in identifying Perich as a minister: “the formal title given 

by the Church, the substance reflected in that title, her own use of that 

title, and the important religious functions she performed for the 

Church.”386

Similar questions, both statutory and constitutional, have arisen over 

the definition of “religion” in § 701(j) and, in particular, over the duty of 

employers to accommodate religious observances or practices “without 

undue hardship on the conduct of the employer’s business.” The Supreme Court resolved most of these questions in Trans World Airlines, 

Inc. v. Hardison.

387 It held that § 701(j) does not require an employer to 

accommodate an employee’s religious practices at “more than a de minimis cost” and that accommodation by subordinating the seniority rights 

of other employees would involve unequal treatment on the basis of religion.388 In another case, the Court held that the duty to accommodate 

does not require the employer to accept an employee’s proposed accommodation if its own accommodation is otherwise adequate.389 In narrowly

interpreting the duty to accommodate, the Court implied, although it did 

 

383. 132 S. Ct. 694 (2012).

384. Id. at 702.

385. Id. at 707.

386. Id. at 708. Concurring opinions would have given greater scope to the exception by deferring “to a religious organization’s good-faith understanding of who qualifies 

as its minister,” id. at 710 (Thomas, J., concurring), or by applying the exception whenever an individual, regardless of title, “leads a religious organization, conducts worship 

services or important religious ceremonies or rituals, or serves as a messenger or teacher 

of its faith.” Id. at 712 (Alito, J., concurring).

387. 432 U.S. 63 (1977).

388. Id. at 84.

389. Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60 (1986).
Major Issues in the Federal Law of Employment Discrimination

82

not hold, that a narrow duty to accommodate was consistent with the 

Free Exercise Clause and that a broader duty to accommodate might be 

inconsistent with the Establishment Clause. The Court’s interpretation of 

§ 701(j) appears to avoid or minimize these constitutional questions.

A case explicitly decided on constitutional grounds confirms this 

conclusion. In Estate of Thornton v. Caldor, Inc.,

390 the Court held unconstitutional a state statute that gave employees an absolute right to refuse to work on the Sabbath of their choice. The Court held that the statute violated the Establishment Clause of the First Amendment because it 

conferred a benefit only on employees who observed the Sabbath and 

because it allowed for no exceptions, such as an employer’s attempt to 

make reasonable accommodations. In a concurring opinion, Justice 

O’Connor suggested that these facts distinguished the reasonable accommodation provision in § 701(j) from the state statute before the 

Court.391

Justice O’Connor’s suggestion was confirmed by the brief but controversial history of the Religious Freedom Restoration Act of 1993 

(RFRA).392 The RFRA was intended to expand upon the constitutional 

protection of religious practices recognized by the Supreme Court, which 

required only strict neutrality toward religion.393 The RFRA prohibited 

the states and the federal government from imposing any substantial burden upon the exercise of religion, even by neutral rules of general application, unless it was accomplished by the least restrictive means available to serve a compelling government interest.394 When the 

constitutionality of RFRA was subsequently considered by the Supreme 

Court, however, the statute was held unconstitutional insofar as it applied 

to the states.395 According to the Court, the RFRA exceeded the power of 

Congress to enforce constitutional rights under the Fourteenth Amendment and, instead, sought to define those rights contrary to the Court’s 

own prior decisions. Although the details of this reasoning are complex 

 

390. 472 U.S. 703 (1985).

391. Id. at 711–12 (O’Connor, J., concurring). Accord Protos v. Volkswagen of Am. 

Inc., 797 F.2d 129, 135–37 (3d Cir. 1986).

392. 107 Stat. 1488, 42 U.S.C. §§ 2000bb to 2000bb-4 (2006).

393. Employment Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 878–82 

(1990).

394. 42 U.S.C. § 2000bb-1 (2006).

395. City of Boerne v. Flores, 521 U.S. 507, 529–36 (1997). 
I. Prohibitions and Defenses in Title VII

83

and controversial, the ultimate result is clear: Legislative protection of 

religious freedom can only operate within a narrow area defined by several different constitutional restrictions.

Retaliation

Like many comprehensive statutes, Title VII contains substantive provisions that safeguard the operation of its procedures for enforcement. In 

Title VII, these are provisions against retaliation, such as discipline or 

discharge, for invoking rights under the statute. Employers are prohibited 

from taking any action that deters or punishes any attempt to enforce 

rights under the statute. Section 704(a) protects employees and applicants 

in two separate ways: for having “opposed any practice made an unlawful employment practice by this title” or for having “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title.”396 The first of these clauses, which 

protects opposition by self-help, has generally been more narrowly interpreted than the second, which protects participation in enforcement proceedings.

Opposition under the first clause raises questions about the form of 

protest used. In general, the less disruptive the form of protest, the more 

likely it is to be protected. For instance, the Supreme Court has recently 

held that an employee’s response to her employer’s questions about alleged sexual harassment in the workplace constituted protected opposition.397 The employee could not be disciplined or discharged because she 

spoke out about sexual harassment at the employer’s request. By contrast, forms of protest that involve violence or destruction of property 

clearly are unprotected. Between these two extremes fall the traditional 

forms of protest used by unions and labor organizers, such as strikes, 

picketing, and boycotts. In a case arising under the National Labor Relations Act (NLRA), the Supreme Court held that picketing to protest allegedly discriminatory practices was not protected by the NLRA because 

it was not authorized by the union that represented the employees involved.398 Although the Court did not decide the question whether the 

 

396. § 704(a), 42 U.S.C. § 2000e-3(a) (2006).

397. Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., 129 S. Ct. 846 

(2009).

398. Emporium Capwell Co. v. W. Addition Cmty. Org., 420 U.S. 50 (1975).
Major Issues in the Federal Law of Employment Discrimination

84

employees’ conduct was protected under § 704(a) of Title VII,399 its 

holding implied that their conduct was also unprotected under Title VII; 

otherwise, the employees could have obtained substantially the same 

remedy under Title VII that they were denied under the NLRA. The implication, as some courts have held, is that protection for opposition 

through economic pressure is no more extensive under § 704(a) than under the corresponding provision of the NLRA.400

Unlike permissible means, the permissible ends under the opposition 

clause have been consistently interpreted in favor of protection. The protest need not be against an employment practice known to be unlawful. 

The person engaged in opposition need only have a reasonable belief that 

the practice is prohibited by Title VII.401 These rules justifiably take account of the difficulty—and perhaps for nonlawyers, the impossibility—

of determining whether a disputed employment practice actually violates 

Title VII.

The participation clause poses few of the ambiguities of the opposition clause. Since Title VII is enforced almost entirely through administrative and judicial proceedings—rather than through employee selfhelp—the statute must protect employees’ access to the remedial mechanisms that it has established. This clause has therefore been broadly construed to protect participation in state proceedings related to enforcement 

of Title VII,402 and all other forms of participation, even those that might 

be defamatory under state law.403 In the latter case, the employer’s remedy is not through retaliation but through a lawsuit in state court.404 Any 

adverse action taken by an employer after an employee has commenced 

enforcement proceedings, or participated in them in any way, can support 

a claim of retaliation. For this reason, the participation clause plays an 

important role in private litigation under Title VII. It often furnishes an 

added claim for relief, in addition to the claim of discrimination that gave 

rise to enforcement proceedings in the first place.

 

399. Id. at 70–73.

400. National Labor Relations Act § 7, 29 U.S.C. § 157 (2006). See, e.g., Hochstadt 

v. Worcester Found. for Experimental Biology, 545 F.2d 222 (1st Cir. 1976).

401. E.g., Berg v. La Crosse Cooler Co., 612 F.2d 1041 (7th Cir. 1980).

402. Hicks v. ABT Assocs., Inc., 572 F.2d 960, 968–69 (3d Cir. 1978) (dictum).

403. Pettway v. Am. Cast Iron Pipe Co., 411 F.2d 998, 1003–08 (5th Cir. 1969).

404. Id. at 1007 n.22.
I. Prohibitions and Defenses in Title VII

85

The general structure of proof for claims of retaliation follows 

McDonnell Douglas Corp. v. Green405 in shifting the burden of production from the plaintiff to the defendant. The plaintiff has the burden of 

producing evidence that he or she engaged in protected activity and suffered an adverse decision by the employer, and that there was a causal 

connection between the protected activity and the employer’s decision. 

The decision need not have adverse effects upon the plaintiff’s conditions of employment but need only be “materially adverse to a reasonable employee or job applicant” and “harmful to the point that they could 

well dissuade a reasonable worker from making or supporting a charge 

of discrimination.”406 Harm to third parties by the employer also can 

support a claim for retaliation, as the Supreme Court held in Thompson v. 

North American Stainless, LP.

407 The plaintiff in that case, Thompson, 

was the fiancée of another employee, Regalado, who filed a charge of 

sex discrimination against the employer. Thompson alleged that he was 

fired in retaliation for Regalado’s charge, and the Court held that this 

allegation was sufficient to bring him within the “zone of interests” protected by § 704(a).408

If the plaintiff establishes the causal connection between an adverse 

decision and protected activity, the defendant then has the burden of producing a legitimate, nondiscriminatory reason for its decision; the plaintiff has the burden of producing evidence that the offered reason is a pre-

 

405. 411 U.S. 792 (1973).

406. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006).

407. 131 S. Ct. 863 (2011).

408. Id. at 870. The trend toward expanding prohibitions against retaliation is also 

apparent in claims under other statutes. In Kasten v. Saint-Gobain Performance Plastics 

Corp., 131 S. Ct. 1325 (2011), the Court held that an oral complaint of illegal activity 

was sufficient to trigger the (particular) prohibition against retaliation under the Fair Labor Standards Act. That prohibition extended to any employee who “has filed any complaint” of illegal activity under the act, 29 U.S.C. § 215(a)(3), but the Court held that an 

oral complaint was the functional equivalent, a position supported by agencies that administer the act. No similar issue arises under Title VII because § 704(a) does not use the 

word “filed.” It is sufficient if the plaintiff “opposed” an unlawful employment practice 

or “participated” in enforcement proceedings. 
Major Issues in the Federal Law of Employment Discrimination

86

text for retaliation.409 As in individual claims of disparate treatment, the 

burden of persuasion remains entirely on the plaintiff.410

A claim of retaliation, if supported by sufficient evidence to be submitted to the jury, raises the value of the plaintiff’s potential recovery in 

two ways. First, a plaintiff who has been the victim of retaliation has a 

greater chance of winning the jury’s sympathy on the underlying claim 

of discrimination. Second, proof of retaliation goes a long way toward 

justifying an award of punitive damages, which are available only upon 

proof that the defendant acted “with malice or with reckless indifference 

to the federally protected rights of an aggrieved individual.”411 The crucial issue in retaliation claims, however, as in claims of discrimination, is 

whether the plaintiff has presented sufficient evidence to survive a motion for summary judgment or a motion for judgment as a matter of law, 

and therefore, sufficient evidence to have the claim submitted to the jury.

Advertising

Section 704(b) generally prohibits discrimination in advertising for 

jobs.412 Because it regulates the press, § 704(b) raises questions under the 

First Amendment, but these are easily resolved. If the underlying activity 

can be prohibited—such as selling narcotics—then advertisements for 

the activity can be prohibited also. Accordingly, the Supreme Court has 

readily upheld statutory prohibitions against discrimination in “help 

wanted” advertising.413

Section 704(b) does raise a difficult issue of standing, however. The 

individuals harmed by advertising in violation of § 704(b) are only those 

who have been deterred from applying for the job advertised. Those who 

applied for the job, even if they were rejected, were not harmed by the 

advertisement, even if they suffered discrimination in hiring. By definition, the latter individuals applied for the job despite the advertisement. 

Nevertheless only those least likely to sue—deterred nonapplicants—

 

409. Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989), cert. denied, 493 U.S. 

1023 (1990); Taitt v. Chem. Bank, 849 F.2d 775, 777 (2d Cir. 1988); Miller v. Fairchild 

Indus., Inc., 797 F.2d 727, 731 (9th Cir. 1986), cert. denied, 494 U.S. 1056 (1990).

410. Jalil, 873 F.2d at 706.

411. 42 U.S.C. § 1981a(b)(1) (2006).

412. § 704(b), 42 U.S.C. § 2000e-3(b) (2006).

413. E.g., Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 

376 (1973).
I. Prohibitions and Defenses in Title VII

87

appear to have standing to assert claims under § 704(b). Enforcement of 

this provision, therefore, has been indirect, through the threat of claims 

of discrimination in hiring. Few forms of evidence are as compelling as 

discriminatory advertising to support a claim of discrimination in related 

employment practices.

Coverage

The coverage of Title VII raises numerous issues of varying significance. 

Section 701 makes Title VII applicable to all employers with fifteen or 

more employees in an industry affecting commerce; all labor organizations in an industry affecting commerce; and all employment agencies 

that regularly provide employment to statutorily defined employees.

414

The statutory definition of “employer” includes state and local government but excludes the United States and related entities, Indian tribes, 

and certain private membership clubs.415 The exception for the United 

States and related entities is largely, but not entirely, offset by the special 

provisions for coverage of employees of the United States.416

Section 701 reflects diverse concerns, such as protecting the freedom 

of association of smaller employers, or at least leaving them to be regulated only by state law; recognizing the greater ability of larger employers to comply with a complex statutory scheme; and providing a special 

remedy for federal employees consistent with the remedies available under the civil service system. The limit on the size of employers, together 

with provisions in the Civil Rights Act of 1991 limiting liability for damages based on the size of the employer, have led most of the circuits to 

hold that individual agents of an employer are not covered by the statute 

at all.417 This issue has been most frequently litigated in sexual harass-

 

414. § 701(b)–(e), 42 U.S.C. § 2000e(b)–(e) (2006).

415. § 701(a)–(b), 42 U.S.C. § 2000e(a)–(b) (2006).

416. § 717(a), 42 U.S.C. § 2000e-16(a) (2006). The Civil Rights Act of 1991 also 

added special provisions for claims by employees of the Senate (but not the House of 

Representatives), but these have now been superseded by the Congressional Accountability Act of 1995, codified at 2 U.S.C. §§ 1301–1433 (2006). This Act makes employees of 

the Senate and the House subject to Title VII and the other federal employment discrimination statutes but provides special procedures for enforcement. Id. §§ 1302, 1311, 1401.

417. E.g., Albra v. Advan, Inc., 490 F.3d 826, 830 (11th Cir. 2007); Powell v. Yellow Book USA, Inc., 445 F.3d 1074, 1079 (8th Cir. 2006); Tomka v. Seiler Corp., 66 

F.3d 1295 (2d Cir. 1995); Williams v. Banning, 72 F.3d 552, 555 (7th Cir. 1995); Miller 

v. Maxwell’s Int’l Inc., 991 F.2d 583 (9th Cir. 1993), cert. denied, 510 U.S. 1109 (1994).
Major Issues in the Federal Law of Employment Discrimination

88

ment cases, in which the plaintiff has sued both the employer and a supervisor who has allegedly engaged in harassment.418

There is much routine litigation over the question whether an employer has fifteen or more employees,419 and this question, like all questions of coverage, goes to the merits of the plaintiff’s claim, not the subject-matter jurisdiction of the court.420 Two questions of general 

significance have also arisen with some frequency: whether Title VII 

extends to all aspects of employment and whether it extends to employees who work outside the United States. The first question has been resolved in favor of coverage, reaching such conditions and benefits from 

employment as eligibility for partnership in a law firm421 and pension 

benefits.422 The question of coverage of employees working overseas was 

first resolved by the Supreme Court against coverage,423 but this decision 

was overruled by the Civil Rights Act of 1991, which explicitly extends 

coverage to American citizens employed overseas by American employers and corporations controlled by such employers.424 This extension of 

coverage is subject to a defense that compliance with Title VII would 

violate the law of the country of employment.425

 

418. E.g., Lissau v. S. Food Serv., 159 F.3d 177, 181 (4th Cir. 1998); Paroline v. 

Unisys Corp., 879 F.2d 100 (4th Cir. 1989), vacated in part on other grounds, 900 F.2d 

27 (4th Cir. 1990); Grant v. Lone Star Co., 21 F.3d 649 (5th Cir. 1994).

419. In Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440 (2003), 

the Supreme Court held that physicians, who were also shareholders and directors of a 

professional corporation, should be counted as employees according to the common-law 

test of control over their actions by the firm. All employees who meet this test are counted over the relevant period, whether or not they are actually working on the days in question. Walters v. Metro. Educ. Enters., Inc., 519 U.S. 202 (1997).

420. Arbaugh v. Y & H Corp., 546 U.S. 500 (2006).

421. Hishon v. King & Spaulding, 467 U.S. 69, 74–76 (1984).

422. Arizona Governing Comm. v. Norris, 463 U.S. 1073 (1983) (per curiam); City 

of Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702, 708–11 (1978).

423. EEOC v. Arabian Am. Oil Co., 499 U.S. 244 (1991).

424. §§ 701(f), 702(c), 42 U.S.C. §§ 2000e(f), 2000e–1(c) (2006).

425. § 702(b), 42 U.S.C. § 2000e-1(b) (2006).
89

II. Procedures and Remedies in Title VII

Title VII establishes an enforcement scheme that is divided into three 

stages: state or local administrative proceedings to enforce state law or 

local ordinances against employment discrimination; investigation and 

conciliation by the EEOC; and litigation, either in public actions by the 

EEOC or the Attorney General, or in private actions. The first stage, state 

or local administrative remedies, must be exhausted only if a state or locality has enacted a statute or ordinance against employment discrimination.426 An EEOC regulation contains an authoritative list of states and 

localities with appropriate agencies.427 The EEOC must give “substantial 

weight” to the findings of state and local agencies,428 but the courts are 

not bound by any administrative findings, whether by state or local agencies or by the EEOC.429 Federal courts, however, are bound by the decisions of state courts reviewing state or local administrative agencies.430

At the second stage, the EEOC exercises no adjudicatory authority, 

except in cases filed by federal employees and certain high-level state 

employees, for which special procedures apply.431 The only powers of 

the EEOC are to investigate charges, determine whether there is reasonable cause to support them, attempt to reach a settlement through conciliation, and decide whether to sue or, if the charge is filed against a state or 

local government agency, refer it to the Attorney General for a decision 

whether to sue.432 If conciliation does not result in a settlement satisfacto-

 

426. § 706(c), (d), 42 U.S.C. § 2000e-5(c), (d) (2006); 29 C.F.R. § 1601.70 (2010).

427. 29 C.F.R. § 1601.74 (2010).

428. § 706(b), 42 U.S.C. § 2000e-5(b) (2006).

429. Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 106 (1991); Univ. 

of Tenn. v. Elliott, 478 U.S. 788, 795–96 (1986); McDonnell Douglas Corp. v. Green, 

411 U.S. 792, 798–800 (1973). However, federal courts may be bound by the unreviewed 

decisions of state agencies as they affect claims under other federal statutes. Univ. of 

Tenn., 478 U.S. at 796–99.

430. Kremer v. Chem. Constr. Corp., 456 U.S. 461 (1982).

431. § 717(b), 42 U.S.C. § 2000e-16 (2006); Civil Rights Act of 1991 § 321, 105 

Stat. 1071, 1097. Employees of the House of Representatives and the Senate are subject 

to separate procedures established by each house. Id. §§ 117, 301–19, 105 Stat. 1071, 

1080, 1088–96. Presidential employees also are subject to special procedures. Id. § 320, 

105 Stat. 1071, 1096–97.

432. § 706(f), 42 U.S.C. § 2000e-5(f) (2006); U.S. EEOC v. Ill. State Tollway Auth., 

800 F.2d 656 (7th Cir. 1986).
Major Issues in the Federal Law of Employment Discrimination

90

ry to the charging party and if the EEOC or the Attorney General decides 

not to sue, the EEOC issues a right-to-sue letter to the charging party.433

Apart from the requirement of exhaustion of state and local administrative remedies and timely filing with the EEOC, the details of prior administrative proceedings are not generally significant in Title VII litigation.

At the third stage, after receipt of a right-to-sue letter, the charging 

party can sue in either federal or state court.434

Statutes of Limitations

Limitations for Filing with the EEOC

The limitation for filing charges with the EEOC depends upon the existence of a state or local agency to enforce a statute or ordinance against 

employment discrimination. In a state or locality without such an agency, 

a charge must be filed with the EEOC within 180 days of the alleged discrimination.435 In a state or locality with such an agency, a charge must 

be filed with the EEOC within 300 days of the alleged discrimination or 

within 30 days of notice of termination of state or local proceedings, 

whichever period expires first.436 Moreover, if an individual files a 

charge with the EEOC without first exhausting appropriate state or local 

administrative remedies, the EEOC must defer action on the charge for 

60 days or until the termination of state or local proceedings, whichever 

occurs first.437

In Love v. Pullman Co.,

438 the Supreme Court approved the EEOC’s 

treatment of charges filed with the EEOC before exhaustion of state or 

local administrative remedies. In such cases, exhaustion of state and local 

administrative remedies is accomplished automatically by the EEOC, 

which refers the charge to the state or local agency and then, after expiration of the 60-day deferral period, reactivates the charge within its own 

proceedings.439 In Mohasco Corp. v. Silver,

440 the Court examined the 

 

433. § 706(b), (e), (g), 42 U.S.C. § 2000e-5(b), (e), (g) (2006).

434. Yellow Freight Sys., Inc. v. Donnelly, 494 U.S. 820 (1990).

435. § 706(e), 42 U.S.C. § 2000e-5(e)(1) (2006).

436. Id.

437. § 706(c), (d), 42 U.S.C. § 2000e-5(c), (d) (2006).

438. 404 U.S. 522 (1972).

439. 29 C.F.R. § 1601.13 (2010).

440. 447 U.S. 807 (1980).
II. Procedures and Remedies in Title VII

91

effect of this practice on the limitation for filing with the EEOC. Essentially, the Court combined the 300-day limitation for filing with the 

EEOC with the 60-day deferral period for state or local proceedings. The 

result was the “240-day maybe” rule. The 240-day branch of the rule derives from the 300-day branch of the limitation, less the 60-day deferral 

period. The Court reasoned that a charge initially filed with the EEOC 

without exhaustion of state or local administrative proceedings is effectively filed with the EEOC only 60 days later, when the charge is reactivated by the EEOC after referral to the state or local agency.441 Consequently, the original limitation of 300 days for effective filing with the 

EEOC must be shortened by 60 days to 240 days for initial filing. Sixty 

days of the 300-day limitation are taken up by the deferral period in 

which the EEOC cannot act on the charge. The “maybe” branch of the 

rule derives from the part of the deferral rule that ends the deferral period 

upon termination of state or local proceedings. Even if a charge is initially filed with the EEOC more than 240 days after the alleged discrimination, the charge may still be effectively filed with the EEOC within 300 

days of the alleged discrimination if state or local administrative proceedings terminate in less than 60 days. Termination can occur, for instance, if the state or local agency dismisses the charge. Termination

ends the deferral period and, under EEOC regulations, automatically reactivates the charge with the EEOC before the expiration of the 300-day 

limitation.442

The problem with Mohasco’s “240-day maybe” rule is that a 240-

day limitation appears nowhere in the statute. The rule is thus difficult to 

find and understand, especially for nonlawyers who are supposed to be 

able to file charges with the EEOC without the assistance of counsel.443

The chief argument for the “240-day maybe” rule is that it is the only 

rule that results in equal treatment of those who file charges initially with 

the EEOC and those who file charges with the EEOC only after exhausting state or local administrative remedies. Both have 300 days from the 

date of the alleged discrimination and 240 days after the deferral period 

to file a timely charge with the EEOC.444

 

441. Id. at 815–817; 29 C.F.R. § 1601.13 (2010).

442. § 706(c), (d), 42 U.S.C. § 2000e-5(c), (d) (2006); 29 C.F.R. § 1601.13(a)(3)(ii) 

(2010).

443. Love, 404 U.S. at 527.

444. Mohasco, 447 U.S. at 825.
Major Issues in the Federal Law of Employment Discrimination

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The EEOC has alleviated much of the uncertainty created by the 

“240-day maybe” rule by entering into work-sharing agreements with 

state and local agencies, as it has in many states. Such agreements are 

expressly authorized by § 709(b)445 and typically provide for waiver of 

jurisdiction of the state or local agency if necessary to ensure that a 

charge is timely filed with the EEOC. These provisions become critical if 

the plaintiff has filed with the EEOC or the state agency within the 

“maybe” period identified in Mohasco: more than 240 days but no more 

than 300 days after the alleged discrimination. In EEOC v. Commercial 

Office Products Co.,

446 the Supreme Court held that waiver of state jurisdiction over charges filed in this period, followed by automatic referral 

of these charges to the EEOC, satisfies the 300-day limitation. Although 

the work-sharing agreements effectively circumvent the 60-day deferral 

period required by § 706(c) and (d), they follow the principle, endorsed 

by Love, that the EEOC can assist nonlawyers in complying with the 

complex procedures created by Title VII. Moreover, work-sharing 

agreements do not encroach upon the power of state and local agencies to 

process charges during the 60-day deferral period, since they require the 

consent of those agencies.

The Supreme Court has also simplified the time limits for filing with 

the EEOC by holding that compliance with the time limits for filing with 

state or local agencies is not necessary in order to exhaust such remedies. 

In Oscar Mayer & Co. v. Evans,

447 the Court interpreted a provision of 

the Age Discrimination in Employment Act, adopted verbatim from Title 

VII, to mean that the only requirement for filing a charge with a state or 

local administrative agency is “the filing of a written and signed statement of the facts upon which the proceeding is based.”448 Relying extensively on the legislative history of Title VII, the Court reasoned that this 

provision listed all of the requirements for a filing sufficient to exhaust 

state or local remedies. Since filing within the state or local limitation 

was not listed, it was not necessary.449 Although most of the appellate

 

445. § 709(b), 42 U.S.C. § 2000e-8(b) (2006); see also § 705(g)(1), 42 U.S.C. § 2000e4(g)(1) (2006).

446. 486 U.S. 107 (1988).

447. 441 U.S. 750 (1979).

448. Age Discrimination in Employment Act, 29 U.S.C. § 633(b) (2006). The corresponding provision in Title VII is § 706(c), 42 U.S.C. § 2000e-5(c) (2006).

449. Oscar Mayer, 441 U.S. at 759.
II. Procedures and Remedies in Title VII

93

courts to consider the issue have applied this reasoning to Title VII 

claims, some district courts have doubted whether it allows plaintiffs to 

take advantage of the 300-day limitation for filing with the EEOC if they 

have failed to satisfy a state limitation of at least 180 days.450

The time limit for filing charges has been further simplified by an 

EEOC regulation that permits an unsworn charge to be filed within the 

limitation period, even though Title VII requires charges to be “under 

oath or affirmation,”451 and that allows later verification of the charge to 

relate back to the date of initial filing. This regulation was upheld by the 

Supreme Court in Edelman v. Lynchburg College.

452 Charges usually are 

filed on a form supplied by the EEOC, but it is not necessary to do so. 

The Supreme Court has upheld the sufficiency of an intake questionnaire 

filed with the EEOC, along with supporting affidavits. The documents 

filed need only identify the parties involved and be “reasonably construed as a request for the agency to take remedial action to protect the 

employee’s rights or otherwise settle a dispute between the employer and 

the employee.”453

Limitations for Filing in Court

For private actions, the limitation for filing in federal court is 90 days 

from receipt of a right-to-sue letter.454 When a plaintiff represents himself or herself pro se and files the right-to-sue letter as a complaint, it is 

usually insufficient to satisfy or toll the 90-day limitation.455 If the letter 

is accompanied by the charge filed with the EEOC, however, it may constitute “a short and plain statement of the claim showing that the pleader 

is entitled to relief” under Federal Rule of Civil Procedure 8(a)(2).456

 

450. Martinez v. UAW, Local 1373, 772 F.2d 348, 350–52 (7th Cir. 1985) (dictum); 

Lowell v. Glidden-Durkee, 529 F. Supp. 17, 21–26 (N.D. Ill. 1981).

451. § 706(b), 42 U.S.C. § 2000e-5(b) (2006).

452. 535 U.S. 106, 118–19 (2002).

453. Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008).

454. § 706(f)(1), 42 U.S.C. § 2000e-5(f)(1) (2006).

455. Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147 (1984).

456. Judkins v. Beech Aircraft Corp., 745 F.2d 1330 (11th Cir. 1984). The requirements for pleading must nevertheless show a plausible basis for establishing discrimination. Aschcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); Coleman v. Maryland Court of 

Appeals, 626 F.3d 187 (4th Cir. 2010) (complaint dismissed because of conclusory allegations of racial discrimination).
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For public actions brought by the EEOC or the Attorney General, 

Title VII specifies no limitation at all. Only the equitable defense of 

laches limits the time within which public actions may be brought.457

General Principles

In addition to interpreting the limitations for filing with the EEOC, the 

Supreme Court has decided several other issues generally applicable to 

limitations under Title VII. The Court has held that the limitations under 

Title VII are not tolled during judicial proceedings to remedy discrimination under other statutes, such as § 1981,458 or during resort to grievance 

and arbitration procedures under a collective bargaining agreement.459

The Court has also held, however, that the limitations under Title VII are 

not jurisdictional, so that they are subject to waiver, estoppel, and equitable tolling,460 and that they are tolled during the pendency of a class action.461 In a case of denial of tenure by a university, the Court held that 

the limitation began to run when tenure was denied, not at the expiration 

of a terminal contract one year later.462 The implications of this decision 

for employment decisions other than tenure are uncertain.

The Supreme Court’s most important decision interpreting the limitations under Title VII concerns the theory of continuing violations. In 

United Air Lines, Inc. v. Evans,

463 the Court held that a charge filed with 

the EEOC in 1973 did not timely raise a claim of discriminatory discharge in 1968, despite the fact that the plaintiff was rehired in 1972 and 

continued to suffer the adverse effects of the discharge through denial of 

seniority for any period before 1972. The Court’s holding was based 

partly on the exception for seniority systems in § 703(h),

464 but it was 

also based on reasoning from the statute of limitations:

A discriminatory act which is not made the basis for a timely charge 

is the legal equivalent of a discriminatory act which occurred before 

the statute was passed. It may constitute relevant background evi-

 

457. Occidental Life Ins. Co. v. EEOC, 432 U.S. 355 (1977).

458. See Johnson v. Ry. Express Agency, 421 U.S. 454 (1975).

459. Elec. Workers v. Robbins & Myers, Inc., 429 U.S. 229 (1976).

460. Zipes v. Trans World Airlines, 455 U.S. 385 (1982).

461. Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983).

462. Delaware State Coll. v. Ricks, 449 U.S. 250 (1980).

463. 431 U.S. 553 (1977).

464. See supra text accompanying notes 277–82.
II. Procedures and Remedies in Title VII

95

dence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in 

history which has no present legal consequences.465

Subsequent decisions have made it clear that the theory of continuing 

violations cannot be used to revive otherwise time-barred claims of discrimination concerned with discrete events466 but that it does apply to 

claims inherently concerned with repeated acts. Even after Evans, the 

theory still applies to claims in which the plaintiff was injured outside the 

limitation period by a series of repeated acts of discrimination that continued into the limitation period.

467

Claims, such as those for sexual or racial harassment based on a hostile environment, also support recovery under the theory of continuing 

violations, as the Supreme Court held in National Railroad Passenger 

Corp. v. Morgan.

468 These types of claims necessarily arise over a period 

of time because “[t]heir very nature involves repeated conduct” and so 

can include acts that occurred outside the limitation period.469 By contrast, “discrete discriminatory acts are not actionable if time barred, even 

when they are related to acts alleged in timely filed charges.”470

Further support for the theory of continuing violations can be derived 

from the limitation in § 706(g) on awards of back pay to two years prior 

to the filing of a charge with the EEOC.471 In the absence of the theory of 

continuing violations, this provision would be entirely redundant, since 

the longest limitation for filing charges with the EEOC would be only 

300 days, and awards of back pay could not be given for any greater period before the filing with the EEOC. However, the two-year limitation 

on awards of back pay was added to § 706(g) to protect defendants from 

excessive awards of back pay under the theory of continuing violations,472 and it was added before the Supreme Court’s decision in Evans. 

It would be ironic, but perhaps justifiable, if a limitation added to restrict 

 

465. Evans, 431 U.S. at 558.

466. See Jackson & Matheson, The Continuing Violation Theory and the Concept of 

Jurisdiction in Title VII Suits, 67 Geo. L.J. 811, 819–23 (1979).

467. See Lewis v. City of Chicago, 130 S. Ct. 2191, 2199 (2010).

468. 536 U.S. 101, 122 (2002).

469. Id. at 115.

470. Id. at 102.

471. § 706(g)(1), 42 U.S.C. § 2000e-5(g)(1) (2006).

472. George P. Sape & Thomas J. Hart, Title VII Reconsidered: The Equal Employment Opportunity Act of 1972, 40 Geo. Wash. L. Rev. 824, 880–83 (1972).
Major Issues in the Federal Law of Employment Discrimination

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the theory of continuing violations before Evans was interpreted as congressional ratification of the theory after Evans.

As applied to claims of discrimination in pay and in seniority systems, the theory of continuing violations has had an uneven reception, 

eventually resulting in its adoption by Congress. The process began with 

a restrictive decision of the Supreme Court that started the limitation 

running when the seniority system was adopted or changed, effectively 

barring most claims against the system under Title VII.473 This decision 

was then superseded by the Civil Rights Act of 1991, which applied the 

statute of limitations far more liberally. When a plaintiff alleges discrimination in the seniority system itself, the limitation period starts to run 

from three different events, effectively making the last of them the only 

one that counts: when the seniority system is adopted, when the plaintiff 

is subject to the seniority system, or when the plaintiff is injured by the 

application of the seniority system.474

The course of decisions on claims of pay discrimination was similar

but more complicated. In Bazemore v. Friday,

475 the Supreme Court held 

that perpetuation of discriminatory salary differences originating before 

the effective date of Title VII could be the subject of a timely charge, 

since the discrimination was renewed every time the plaintiffs were 

paid.476 This decision did not quite answer the question whether pay constituted a continuing violation, and National Railroad Passenger Corp. v. 

Morgan stated, in dictum, that pay claims involved discrete acts rather a 

continuing violation.477 This dictum then became a holding in Ledbetter 

v. Goodyear Tire & Rubber Co.,

478 requiring the plaintiff to show both 

lower pay and a discriminatory decision by the employer within the limitation period. That decision was then superseded by Congress in the Lilly 

Ledbetter Fair Pay Act of 2009.

479 This legislation adopted the same liberal approach for claims of pay discrimination as for claims against sen-

 

473. The overruled decision is Lorance v. AT&T Techs., Inc., 490 U.S. 900 (1989).

474. § 706(e)(2), 42 U.S.C. § 2000e-5(e)(2) (2006).

475. 478 U.S. 385 (1986).

476. Id. at 385–97.

477. 526 U.S. at 111–12.

478. 550 U.S. 618 (2007).

479. Pub. L. No. 111-2, 123 Stat. 5, codified in Title VII at §§ 706(e)(3), 717(f), 42 

U.S.C.A. §§ 2000e-5(e)(3), 16(f) (2010). The Act also made corresponding changes to 

the Age Discrimination in Employment Act, the Rehabilitation Act, and the Americans 

with Disabilities Act. Pub. L. No. 111-2 §§ 4, 5.
II. Procedures and Remedies in Title VII

97

iority systems, starting the limitation period running from the latest of 

any of three dates, including “when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in 

whole or in part from such a decision or other practice.”480 Claims of pay 

discrimination can now be brought under Title VII upon a showing only 

of lower pay within the limitation period, even if the employer’s discriminatory decision occurred long before.481

The Supreme Court has continued to recognize limits on the theory 

of continuing violations, most recently in AT&T Corp. v. Hulteen.

482 Like 

Evans, Hulteen involved the present effect of past discriminatory practices. The practice in question was the denial of pregnancy benefits before 

the effective date of the Pregnancy Discrimination Act. The denial was 

entirely permissible under prevailing precedent at the time, but it reduced 

the plaintiff’s current pension benefits. The Court held that this effect 

was insulated from challenge under Title VII for several interrelated reasons: the Pregnancy Discrimination Act was not retroactive; pension 

benefits were determined according to a neutral seniority system under § 

703(h); and the special limitation period for challenging the operation of 

a seniority system in § 703(e)(2) did not apply. The Lilly Ledbetter Fair 

Pay Act also was inapplicable because both the initial denial of pregnancy benefits and the seniority system were lawful, so that there was no 

initial, illegal decrease in compensation.483

Private Actions

Individual Actions

Private actions can be brought by individuals who themselves filed 

charges, or on whose behalf charges were filed, with the EEOC.484 If

these individuals have not agreed to a settlement of the charge and a pub-

 

480. § 706(e)(3)(A), 42 U.S.C.A. § 2000e-5(e)(3)(A) (2010).

481. See, e.g., Miller v. Kempthorne, 357 Fed. Appx. 384, 386 (2d Cir. 2009); 

Mikula v. Allegheny Cnty., 583 F.3d 181, 184-85 (3d Cir. 2009).

482. 129 S. Ct. 1962 (2009).

483. By contrast, where these conditions were not met, the Lilly Ledbetter Fair Pay 

Act allowed a Title VII claim to proceed based on the effects of alleged reverse discrimination that occurred more than 300 days before a charge was filed. Groesch v. City of 

Springfield, 635 F.3d 1020, 1024-26 (7th Cir. 2011).

484. § 706(f)(1), 42 U.S.C. § 2000e-5(f)(1) (2006).
Major Issues in the Federal Law of Employment Discrimination

98

lic action has not been filed, they may bring an individual action after 

receiving a right-to-sue letter. Moreover, if the EEOC has failed to take 

any action on a charge for 180 days, after the expiration of the deferral 

period, an individual can receive a right-to-sue letter upon request.485

Before any litigation is commenced, the EEOC will disclose the results 

of its investigation of a charge, but not discussions in attempted conciliation, to the charging party or to the person on whose behalf the charge 

was filed. The Supreme Court has held that the general prohibition 

against public disclosure of the results of an EEOC investigation before 

an action is filed does not apply to disclosure to those who are the subject 

of the charge or their attorneys.486

Class Actions

Private actions under Title VII are often brought as class actions. A 

named plaintiff can exhaust administrative remedies on behalf of the 

class and with respect to any claim that was the subject of or could reasonably have been expected to grow out of the EEOC’s investigation of 

the charge.487 A line of cases, originating in the Fifth Circuit, initially 

adopted a principle of liberal certification of Title VII class actions.488

These cases applied the requirements of Federal Rule of Civil Procedure 

23 loosely in Title VII cases and certified “across-the-board” classes that 

included all employees who suffered from discrimination throughout an 

employer’s operations.

The Supreme Court subsequently halted this trend in two cases in 

which it reversed certification of classes approved by the Fifth Circuit. In 

East Texas Motor Freight System v. Rodriguez,

489 the Court held that a 

class was erroneously certified on appeal when the named plaintiffs had 

not sought certification before trial; the case had not been tried as a class 

action; the relief requested by the named plaintiffs had been rejected in a 

union vote by most of the class members; and the named plaintiffs had 

lost on their individual claims at trial. In General Telephone Co. v. Fal-

 

485. Id.

486. § 706(b), 42 U.S.C. § 2000e-5(b) (2006); EEOC v. Associated Dry Goods 

Corp., 449 U.S. 590 (1981).

487. Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970).

488. E.g., Johnson v. Ga. Highway Express, Inc., 417 F.2d 1122 (5th Cir. 1969).

489. 431 U.S. 395 (1977).
II. Procedures and Remedies in Title VII

99

con,

490 the Court held that a class of applicants for employment was erroneously certified by the district court because the only named plaintiff 

was an employee who claimed discrimination in promotions. In Rodriguez, the Court stated, “We are not unaware that suits alleging racial or 

ethnic discrimination are often by their very nature class suits, involving 

classwide wrongs. Common questions of law or fact are typically present. But careful attention to the requirements of Fed. Rule Civ. Proc. 23 

remains nonetheless indispensable.”491 In Falcon, the Court added that 

the “across-the-board” rule led to neglect of the requirements of Rule 23

but left open the possibility that employment practices applicable to both 

employees and applicants might justify certification of an equally broad 

class.492

The Civil Rights Act of 1991 further complicated the process of certifying Title VII class actions by adding damages as a remedy routinely 

available to victims of employment discrimination.493 Damage class actions typically are certified under Federal Rule of Civil Procedure 

23(b)(3), which requires a finding that class actions are superior to actions by individual class members and that common questions predominate over those applicable only to individuals.

494 Class members in such 

actions also are entitled to individual notice, and they have the right to 

opt out of any class action brought on their behalf.495 None of these requirements apply to class actions under Rule 23(b)(2), under which most 

Title VII class actions were certified before 1991.496

The Supreme Court eventually resolved the question of certification

under subdivision (b)(2) or subdivision (b)(3) in Wal-Mart Stores, Inc. v.

 

490. 457 U.S. 147 (1982).

491. Rodriguez, 431 U.S. at 405. This statement was quoted in part in Falcon, 457 

U.S. at 157.

492. Falcon, 457 U.S. at 157–60 & n.15. A similar possibility led to the Court’s 

later decision in Bazemore v. Friday, 478 U.S. 385 (1986), which affirmed the denial of 

class certification in some respects, but not others, based on geographical differences in 

conditions of employment. The Court reached a similar conclusion in Cooper v. Federal 

Reserve Bank, 467 U.S. 867 (1984), but it did so in a manner favorable to individual 

plaintiffs. The Court held that the judgment in a class action which dismissed claims of a 

pattern or practice of discrimination in promotions did not preclude subsequent individual 

claims by class members.

493. 42 U.S.C. § 1981a(a)(1) (2006).

494. Fed. R. Civ. P. 23(b)(3).

495. Fed. R. Civ. P. 23(c)(2).

496. Fed. R. Civ. P. 23(b)(2).
Major Issues in the Federal Law of Employment Discrimination

100

Dukes.

497 That case involved a class of 1.5 million women who allegedly 

had been the victims of sex discrimination in pay and promotions at WalMart’s stores throughout the United States. In a unanimous ruling, the 

Supreme Court held that a class action could not be certified under (b)(2) 

because the plaintiffs’ claims for back pay were more than “incidental” 

to their claims for injunctive and declaratory relief.498 Individualized 

claims for monetary relief, the Court held, triggered the added requirements under (b)(3). These requirements could not be avoided for any of 

the reasons asserted by the plaintiffs: because injunctive and declaratory 

relief predominated; because back pay might be characterized as a form 

of equitable relief; or because back pay might be awarded by an averaging formula.499 The Court went on to cast doubt on whether any class action seeking monetary relief could meet the requirements of Rule 23 or, 

for that matter, the Due Process Clause. These questions, however, were 

reserved for another day.500

In a more controversial ruling, the Supreme Court divided five-tofour over whether any class action could be certified. The majority held 

that the plaintiffs had failed to establish “commonality” under subdivision (a)(2): that “there are questions of law or fact common to the 

class.”501 For the majority, the crucial inquiry is “the capacity of a classwide proceeding to generate common answers apt to drive the resolution 

of the litigation.”502 This inquiry involves a “rigorous analysis” that goes 

beyond the pleadings and “will entail some overlap with the merits of the 

plaintiff’s underlying claim.”503 Commonality could not be found on the 

record in Wal-Mart because the plaintiffs established only “Wal-Mart’s 

‘policy’ of allowing discretion by local supervisors over employment 

matters,” which amounted to “a policy against having uniform employment practices.”504 The dissenters on this issue would have reached a different result based on a more lenient understanding of “commonality” 

 

497. 131 S. Ct. 2541 (2011).

498. Id. at 2557.

499. Id. at 2559–60.

500. Id. at 2560.

501. Fed. R. Civ. P. 23(a)(2). Wal-Mart, 131 S. Ct. at 2550–57.

502. Id. at 2551, quoting Richard A. Nagareda, Class Certification in the Age of 

Aggregate Proof, 84 N.Y.U. L. Rev. 97, 131-132 (2009).

503. Wal-Mart, 131 S. Ct. at 2551.

504. Id. at 2554.
II. Procedures and Remedies in Title VII

101

and greater deference to the findings of the trial court.505 As it stands, 

however, the majority’s holding revives renewed scrutiny of this requirement at trial and on appeal. Moreover, the unanimous holding on 

certification under (b)(3) imposes the special requirements of that subdivision in nearly every case in which the plaintiffs seek monetary relief. 

As we shall see in the next section, decisions on arbitration impose further barriers to class actions under Title VII.

Arbitration

The availability of arbitration has increasingly narrowed an individual’s 

right to bring a claim under Title VII. Under Alexander v. GardnerDenver Co.,

506 arbitration under a collective bargaining agreement did 

not usually affect the employee’s individual rights under Title VII. At 

least when arbitration was under the control of the union, the employee 

was under no obligation to resort to arbitration of this kind507 and, at 

most, the arbitrator’s decision could be “admitted as evidence and accorded such weight as the court deems appropriate.”508 Under later decisions, however, any agreement to arbitrate a dispute over statutory rights, 

including one made by a union, can prevent the employee from going 

directly to court to sue. So long as arbitration is authorized by an agreement that gives the employee control over the presentation of his or her 

claim, it can be used as a substitute for litigation.509

The principles governing these different forms of arbitration technically are distinct, but they reflect an overall policy in favor of arbitration.

The trend has been to expand the right to arbitration so long as the employee has actually consented to it by a binding contract. Thus, in Circuit 

City Stores, Inc. v. Adams,

510 the Supreme Court held that agreements to 

arbitrate claims of employment discrimination generally fell within the 

coverage of the Federal Arbitration Act and could be enforced according 

to its terms. More recently, in 14 Penn Plaza LLC v. Pyett,

511 the Court 

 

505. Id. at 2561-67 (Ginsburg, J., concurring in part and dissenting in part).

506. 415 U.S. 36 (1974).

507. Id. at 47–54.

508. Id. at 60 & n.21.

509. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28 (1991).

510. 532 U.S. 105 (2001). In a consumer arbitration case, the Supreme Court upheld 

the power of the arbitrator to determine whether class claims are subject to arbitration. 

Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444 (2003).

510. 129 S. Ct. 1456 (2009).
Major Issues in the Federal Law of Employment Discrimination

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extended this reasoning from individual contracts to collective bargaining agreements. The plaintiffs in Pyett were subject to a collective bargaining agreement that explicitly provided for arbitration of all employment discrimination claims, including those brought under federal and 

state law. The Court held that this provision prevented them from asserting their claims under the ADEA directly in federal court.512 The Court 

preserved its holding in Alexander only to the extent of noting that the 

arbitration in that case, in contrast to Pyett, did not explicitly extend to 

statutory claims.513

In a sign of increased deference to arbitration, the Supreme Court has 

held that the issue of arbitrability itself can be decided by the arbitrator

in some circumstances. In Rent-A-Center, West, Inc. v. Jackson,

514 the 

Court held that the issue of unconscionability had to be decided by the 

arbitrator under an agreement that “clearly and unmistakably” assigned 

the issue to arbitration and where there was no specific claim that assigning this issue to the arbitrator was unconscionable. The plaintiff had challenged the agreement as a whole as unconscionable, but that was not sufficient, in the Court’s view, to challenge the specific assignment of the 

issue to the arbitrator. This highly technical distinction forces parties 

who seek to prevent arbitration to cast their objection in specific terms 

that can be adjudicated by a court. Under § 2 of the Federal Arbitration 

Act, these terms are limited to “such grounds as exist at law or in equity 

for the revocation of any contract.” 515

Yet the Supreme Court has emphasized that an agreement to arbitrate 

prevents resort to litigation only if it clearly states that it has this effect.516 Moreover, an arbitration agreement does not preclude public actions by the EEOC.517 The lower courts also have been careful to ensure 

that the agreement to arbitrate is supported by consideration,518 and they 

 

512. Id. at 1463–66.

512. Id. at 1466–73. The Court also noted that the plaintiff had not properly raised 

the question whether the union controlled his access to arbitration and could prevent him 

from obtaining any remedy at all for discrimination. Id. at 1474.

514. 130 S. Ct. 2772 (2010).

515. 9 U.S.C. § 2.

516. Wright v. Universal Mar. Serv. Corp., 525 U.S. 70, 79–82 (1998).

517. EEOC v. Waffle House, Inc., 534 U.S. 279, 297–98 (2002).

518. Compare Bailey v. Fed. Nat’l Mortg. Ass’n, 209 F.3d 740, 746 (D.C. Cir. 

2000) (employee did not agree to arbitration simply by continuing to work for employer), 
II. Procedures and Remedies in Title VII

103

have scrutinized provisions that impede an employee’s resort to arbitration, such as payment of arbitrator’s fees.519 For example, in Circuit City

itself, on remand from the Supreme Court, the court of appeals found the 

arbitration agreement unconscionable because it was so one-sided in favor of the employer.520

The substantive question is whether allowing employees to bargain 

away their right to judicial remedies in favor of arbitration confers too 

great an advantage upon employers. Employers cannot offer contracts of 

employment that violate the laws against employment discrimination or 

that dilute the protection conferred by these laws. Likewise, employees 

cannot waive their rights under these laws because, it is believed, employers would otherwise use their superior bargaining power to obtain 

agreements that allowed continued discrimination. For the same reason, 

arbitration agreements cannot be used as a means of weakening enforcement of the laws against employment discrimination, for instance, by 

giving employers effective control over the selection of arbitrators.

Yet the principle that the terms of the contract determine the scope 

and nature of arbitration often displaces the rules that would otherwise 

apply in litigation. This is particularly true of class actions. An arbitration agreement that does not provide for class actions does not support 

this procedure and cannot be interpreted by the arbitrator to do so.521 Additional terms of the arbitration agreement might yield an implicit 

agreement to class procedures,522 but there is no presumption to this effect. As a consequence, an agreement to arbitrate can prevent a plaintiff 

both from bringing a case in court and seeking a class action there—

because the case must go to arbitration—and from bringing a class action 

in arbitration itself—because the agreement does not provide for it. In 

AT&T Mobility LLC v. Concepcion,

523 the Supreme Court held that the

 

with Michalski v. Circuit City Stores Inc., 177 F.3d 634, 637 (7th Cir. 1999) (employer 

bound by agreement to arbitrate by promising to abide by results of arbitration).

519. Bradford v. Rockwell Semiconductor Inc., 238 F.3d 549, 553 (4th Cir. 2001) 

(citing cases).

520. Circuit City Stores, Inc. v. Adams, 279 F.3d 889 (9th Cir. 2002) (citing cases), 

cert. denied, 535 U.S. 1112 (2002).

521. Stolt-Nielsen S.A. v. Animalfeeds Int’l, 130 S. Ct. 1758, 1775–76 (2010).

522. In a consumer arbitration case, the Supreme Court upheld the power of the 

arbitrator to determine whether class claims are subject to arbitration. Green Tree Fin. 

Corp. v. Bazzle, 539 U.S. 444 (2003).

523. 131 S. Ct. 1740 (2010).
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104

Federal Arbitration Act preempted any state law that “prohibits outright 

the arbitration of a particular type of claim.”524 California law in that case 

made the agreement to arbitrate unconscionable because it did not provide for class procedures. It followed that it prevented arbitration of individual claims and was therefore preempted by federal law. This holding, although in a consumer contract, applies to all agreements to 

arbitrate and negates any attempt to require class actions through the 

doctrine of unconscionability.

Public Actions

Title VII authorizes the EEOC to sue private employers, and the Attorney General to sue state and local government employers.525 In addition, 

it authorizes EEOC commissioners to initiate administrative proceedings 

by filing charges with the EEOC.526 Public actions can be filed only after 

investigation and conciliation efforts have failed, and in any event, no 

sooner than 30 days after a charge has been pending in the EEOC, after 

the 60-day deferral period.527 In general, more exacting compliance with 

administrative procedures is required in public actions than in private 

actions because the EEOC is held responsible for its own mistakes.528

However, a very broadly worded charge filed by an EEOC commissioner 

was held sufficient to meet the requirements of specificity and notice 

prescribed by Title VII and EEOC regulations.529 If a public action is 

filed, the charging party has a right to intervene, and if a private action is 

filed, the EEOC or the Attorney General may seek permissive intervention after certifying that the case is of general public importance.530

Public actions may be brought under either § 706 or § 707.531 Section 

706 actions usually allege discrimination against a small number of individuals, whereas § 707 actions allege a “pattern or practice” of discrimination against a class of employees. Nothing turns on the difference be-

 

524. Id. at 1747.

525. § 706(f), 42 U.S.C. § 2000e-5(f) (2006).

526. § 706(b), 42 U.S.C. § 2000e-5(b) (2006).

527. § 706(f)(1), 42 U.S.C. § 2000e-5(f)(1) (2006).

528. See EEOC v. Raymond Metal Prods. Co., 530 F.2d 590 (4th Cir. 1976).

529. EEOC v. Shell Oil Co., 466 U.S. 54 (1984). It met the requirements of § 

706(b), 42 U.S.C. § 2000e-5(b) (2006), and 29 C.F.R. § 1601.12(a)(3) (2010).

530. § 706(f)(1), 42 U.S.C. § 2000e-5(f)(1) (2006).

531. §§ 706, 707, 42 U.S.C. §§ 2000e-5, -6 (2006).
II. Procedures and Remedies in Title VII

105

tween the two sections, however. The Supreme Court has held that the 

EEOC or the Attorney General can bring § 706 actions on behalf of a 

class of employees without certification of a class action under Federal 

Rule of Civil Procedure 23.532 Moreover, the allocation of authority to 

sue is the same in both §§ 706 and 707 actions. The EEOC can sue private employers, and the Attorney General can sue state and local government employers. The language of the statute, however, is confused on 

this point, and it was only clarified by an executive reorganization 

plan.533

Actions by Federal Employees

Actions by federal employees are governed by § 717 of Title VII.534 A 

federal employee must exhaust administrative remedies in his or her 

agency, in accordance with the time limits specified in EEOC regulations.535 A complaint must be made to an equal employment opportunity 

counselor within 45 days of the alleged discrimination, and a written 

complaint must be filed with the agency within 15 days of the final interview with the counselor.536 If the federal employee then takes the case to 

the EEOC, a complaint must be filed with the EEOC within 30 days of 

receipt of the final decision of the agency.537 If not, an action can be filed 

in federal court within 90 days of notice of the employing agency’s final 

decision or, if the employing agency has not reached a final decision, at 

any time after 180 days of filing with the agency.538 If a complaint is 

filed with the EEOC, then the EEOC acts in an adjudicative capacity, as 

the successor to the Civil Service Commission.539 If the federal employee 

is dissatisfied with the results of the EEOC proceedings, the employee

may file an action in federal court under the same time limits as an action 

filed directly from agency proceedings: within 90 days of notice of a fi-

 

532. General Tel. Co. v. EEOC, 446 U.S. 318 (1980).

533. § 707(e), 42 U.S.C. § 2000e-6(e) (2006); Reorg. Plan No. 1 of 1978, § 5, 3 

C.F.R. 321 (1978), reprinted in 5 U.S.C. app. at 206 (2006), and in 92 Stat. 3781 (1978).

534. § 717, 42 U.S.C. § 2000e-16 (2006).

535. Claims by federal employees under the ADEA, however, need not be preceded 

by exhaustion of administrative remedies. 29 C.F.R. § 1614.201(a) (2010).

536. 29 C.F.R. §§ 1614.105(a), .106(b) (2010).

537. Id. § 1614.402(a).

538. § 717(c), 42 U.S.C. § 2000e-16(c) (2006); 29 C.F.R. § 1614.408 (2010).

539. Reorg. Plan No. 1 of 1978, § 3, 3 C.F.R. 321 (1978), reprinted in 5 U.S.C. app. 

at 206 (2010), and in 92 Stat. 3781 (1978).
Major Issues in the Federal Law of Employment Discrimination

106

nal decision by the EEOC or, if the EEOC has not reached a final decision, at any time after 180 days of filing with the EEOC.540

The Supreme Court has held that these time limits are not jurisdictional but rather are subject to equitable tolling, just like claims against 

private employers.541 So, too, damages can be awarded to federal employees, both by courts and by the EEOC.542 Actions by federal employees result in de novo judicial review, just like other Title VII actions.543

However, actions to enforce or review an administrative decision favorable to the federal employee result in only limited judicial review.544

For employees covered by its terms, § 717 provides the exclusive 

remedy for employment discrimination.545 Special, complicated procedures apply to claims of discrimination that are joined with claims that 

may be brought before the Merit Systems Protection Board.546 By its 

terms, however, § 717 does not apply to all federal employees.547 The 

Supreme Court has held that excluded federal employees have an implied 

right of action for disparate treatment in violation of the Fifth Amendment.548 Employees of the Senate and the House of Representatives, and 

presidential appointees, however, now have special statutory remedies.549

 

540. § 717(c), 42 U.S.C. § 2000e-16(c) (2006); 29 C.F.R. § 1614.408 (2010).

541. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 93–96 (1990).

542. West v. Gibson, 527 U.S. 212 (1999).

543. Chandler v. Roudebush, 425 U.S. 840 (1976).

544. Moore v. Devine, 767 F.2d 1541 (11th Cir. 1985), clarified on reh’g, 780 F.2d 

1559 (11th Cir. 1986).

545. Brown v. Gen. Servs. Admin., 425 U.S. 820 (1976).

546. 5 U.S.C. § 7702 (2006); 5 C.F.R. §§ 1201.151–.175 (2010); 29 C.F.R. §§ 1614.302–

.310 (2010). Claims involving collective bargaining are even more complex because they 

may also be brought before an arbitrator or before the Federal Labor Relations Authority. 

5 U.S.C. §§ 7118, 7121–7123 (2006).

547. § 717b(a), 42 U.S.C. § 2000e-16b(a) (2006). An exceptional decision extended 

§ 717b to uniformed military personnel but was disapproved by the court of appeals. Hill 

v. Berkman, 635 F. Supp. 1228 (E.D.N.Y. 1986). This decision has not been followed by 

the courts of appeals. E.g., Roper v. Dep’t of the Army, 832 F.2d 247 (2d Cir. 1987).

548. Davis v. Passman, 442 U.S. 228 (1979).

549. See supra note 431.
II. Procedures and Remedies in Title VII

107

Remedies

Civil Rights Act of 1991

The Civil Rights Act of 1991 greatly expanded the remedies available 

under Title VII by authorizing the award of damages for intentional discrimination.550 With the award of damages, the Act also granted the right 

to trial by jury.551 Together these changes moved the litigation of Title 

VII claims ever closer to the model of personal injury litigation: more is 

at stake and more is determined by the jury. The provision that contains 

these changes was enacted as a separate section of the U.S. Code, 

§ 1981a, partly because it also extended the same remedies to plaintiffs 

who alleged discrimination on the basis of disability under the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990.552

Partly, too, Congress wanted to emphasize the parallel between actions 

for damages under Title VII and actions for damages under § 1981, 

which are, unlike Title VII claims, limited to discrimination on the basis 

of race or national origin.553 Section 1981a establishes a damage remedy 

for discrimination on the basis of sex, religion, or disability similar to 

that already available for discrimination on the basis of race or national 

origin under § 1981.

Despite the parallel with damages under § 1981, § 1981a itself is 

limited in several respects. First, damages can be recovered under 

§ 1981a only if they cannot be recovered under § 1981, for instance, because the plaintiff has a claim for race discrimination under the latter 

statute.

554 Second, damages under § 1981a are available only for claims 

of disparate treatment, not for claims of disparate impact.555 Third, recovery of punitive damages is available only against private employers 

and only upon proof that the defendant acted “with malice or with reckless indifference to the federally protected rights of an aggrieved individ-

 

550. 42 U.S.C. § 1981a(a)(1) (2006).

551. Id. § 1981a(c).

552. Id. § 1981a(a)(2), (3).

553. See infra text accompanying notes 900-02.

554. 42 U.S.C. § 1981a(a)(1) (2006). Plaintiffs who have a claim for damages under 

§ 1981 must rely on it.

555. Id. Likewise, § 1981 allows only claims for disparate treatment and so allows 

recovery of damages only for claims of intentional discrimination on the basis of race or 

national origin. See infra text accompanying note 903.
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108

ual.”556 Fourth, monetary relief that can be recovered under Title VII, 

mainly in the form of awards of back pay, cannot be recovered under 

§ 1981a.557 Fifth, the total recovery for future pecuniary damages, nonpecuniary damages, and punitive damages is capped at different amounts 

depending on the size of the employer, from $50,000 for employers with 

more than 14 but fewer than 101 employees, to $300,000 for employers 

with more than 500 employees.558

Of these provisions, the most frequently litigated concerns the award 

of punitive damages, and in particular, the circumstances in which an 

employer can be held liable for the wrongful acts of its supervisors and 

other employees. In Kolstad v. American Dental Association,

559 the Supreme Court held that § 1981a does not require proof that the underlying 

discrimination was egregious. It is sufficient that the employer engaged 

in discrimination “in the face of a perceived risk that its actions will violate federal law.”560 The Court went on to address the question of exactly 

who—among all those who act for an organizational employer—must

perceive this risk. It held that an employer is not vicariously liable for

decisions of managerial agents that are contrary to the employer’s 

“‘good-faith efforts to comply with Title VII.’”561 This standard of vicarious liability is decidedly more favorable to an employer than the analogous standard for most claims of sexual harassment, which imposes absolute liability upon the employer, subject at most to an affirmative 

defense.562 Nevertheless, one court has held that punitive damages for 

 

556. Id. § 1981a(b)(1). This is, however, generally similar to the standards for 

awarding punitive damages under other federal statutes. It has, for instance, been applied 

to claims under § 1981. Lowery v. Circuit City Stores, Inc., 206 F.3d 431, 441 (4th Cir. 

2000).

557. 42 U.S.C. § 1981a(b)(2) (2006).

558. Id. § 1981a(b)(3). These caps, however, do not apply to awards of front pay. 

Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 852–54 (2001).

559. 527 U.S. 526 (1999).

560. Id. at 536.

561. Id. at 545 (quoting Kolstad v. Am. Dental Ass’n, 139 F.3d 958, 974 (D.C. Cir. 

1998) (Tatel, J., dissenting)).

562. See supra text accompanying notes 340-56.
II. Procedures and Remedies in Title VII

109

sexual harassment can be awarded without an award of compensatory 

damages.563

These limits on damages, while significant, do not impose equally 

strict limits on the right to jury trial. Awards of back pay and injunctive 

relief still are made by the judge because they are forms of equitable relief. Under the Seventh Amendment, however, the judge is bound by the 

jury’s decision on all issues common to the requests for legal and equitable relief.564 When the plaintiff alleges intentional discrimination, seeks 

damages, and requests a jury, the issue of liability is submitted to the jury. Only on claims of disparate impact is the issue of liability determined 

by the judge.

A further limitation on § 1981a is increasingly only of historical interest. It concerns cases that arose before the Civil Rights Act of 1991 

became effective on November 21, 1991. In Landgraf v. USI Film Products,

565 the Supreme Court held that § 1981a does not apply to claims 

that arose before the Act’s effective date. This holding might be generalized to other “substantive” provisions of the Act,566 but it probably does 

not apply to “procedural” provisions. The Court relied heavily on “the 

traditional presumption against applying statutes affecting substantive 

rights, liabilities, or duties to conduct arising before their enactment.”567

It also warned, however, that different provisions of the Act might take 

effect at different stages of a case and that, for instance, a purely procedural right would apply to claims that arose before the effective date of 

the Act but were filed after it.568

Wholly apart from the issue of damages, the Civil Rights Act of 

1991 also modified the remedies available under Title VII in various 

ways. The only common theme in these provisions is that they overruled, 

either partially or wholly, decisions of the Supreme Court. First, the Act 

 

563. Cush-Crawford v. Adchem Corp., 94 F. Supp. 2d 294, 299 (E.D.N.Y. 2000) 

(noting circuit conflict on issue whether award of compensatory damages is prerequisite 

to award of punitive damages).

564. Lytle v. Household Mfg., Inc., 494 U.S. 545, 550–54 (1990); Dairy Queen v. 

Wood, 369 U.S. 469, 473 (1962); Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 510–

11 (1959).

565. 511 U.S. 244 (1994).

566. This generalization would apply only to the extent that these provisions are not 

governed by their own explicit effective dates. See id. at 250.

567. Id. at 278.

568. Id. at 280–81.
Major Issues in the Federal Law of Employment Discrimination

110

introduced the partial defense that the plaintiff would have been rejected 

anyway (for instance, denied a job or terminated) for an entirely legitimate reason. The employer must show that it would have made the same 

decision in the absence of discrimination.569 This defense applies only to 

the award of compensatory relief. Even if the defense is made out, the 

plaintiff can still obtain declaratory relief, prospective injunctive relief, 

and attorney’s fees and costs.

570 What appears mainly to have been at

stake was the award of attorney’s fees to prevailing plaintiffs. In a second provision on a related subject, the Act also authorizes the award of 

fees for experts as costs,571 overruling a decision that had restricted fees 

for expert witnesses to the same fees for other witnesses.572 A third provision authorizes the award of interest against the United States.573 A 

fourth provision restricts collateral attack upon judgments and consent 

decrees by persons who were not parties to the underlying action, overruling another Supreme Court decision.

574 This provision was designed 

mainly to protect court-ordered and court-approved affirmative action 

plans from claims of reverse discrimination, but it could not, of course, 

deny any rights to present such claims guaranteed by the Due Process 

Clause.575

Equitable Remedies

Equitable remedies in a variety of forms, from injunctions to awards of 

back pay, have always been available under Title VII. A finding of violation justifies issuance of an injunction against the discriminatory practice 

 

569. § 706(g)(2)(B), 42 U.S.C. § 2000e-5(g)(2)(B) (2006).

570. Id. This provision partially overrules a decision that had recognized a full defense on the same grounds. Price Waterhouse v. Hopkins, 490 U.S. 228, 245–46 (1989). 

See supra text accompanying notes 79-83.

571. § 706(k), 42 U.S.C. § 2000e-5(k) (2006).

572. The overruled decision is Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 

437 (1987). Expert witness fees remain excluded, however, from awards of attorney’s 

fees under civil rights statutes other than Title VII and 42 U.S.C. §§ 1981, 1981a. See 42 

U.S.C. § 1988 (2006); W. Va. Univ. Hosp., Inc. v. Casey, 499 U.S. 83 (1991).

573. § 717(d), 42 U.S.C. § 2000e-16(d) (2006). This provision overruled the decision in Library of Congress v. Shaw, 478 U.S. 310 (1986), to the extent that the latter 

disallowed the award of interest, not to the extent that it allowed an award of back pay.

574. § 703(n), 42 U.S.C. § 2000e-2(n) (2006). The overruled decision was Martin v. 

Wilks, 490 U.S. 755 (1989).

575. § 703(n)(2)(D), 42 U.S.C. § 2000e-2(n)(2)(D) (2006).
II. Procedures and Remedies in Title VII

111

almost as a matter of course,576 at least absent changed circumstances 

that would make an injunction inappropriate.577 A court may also order 

preferential relief for persons who are not victims of discrimination, but 

only in an exceptional case in which the defendant has not complied with 

less controversial remedies.578

Victims of discrimination are entitled to compensatory relief, subject 

to the defendant’s burden of proving that they would have made the same 

decision anyway for an entirely legitimate reason.579 If the defendant carries this burden of proof, the court may award only declaratory relief, 

prospective injunctive relief, and attorney’s fees and costs.580 If the defendant fails to carry this burden, then the plaintiff is almost always entitled to an award of back pay. In Albemarle Paper Co. v. Moody,

581 the 

Supreme Court held that back pay “should be denied only for reasons 

which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making 

persons whole for injuries suffered through past discrimination.”582 One 

such reason mentioned by the Court is unjustified delay in asserting a 

claim for back pay.583 Section 706(g)(1) also provides that an award of 

back pay is subject to an offset for “[i]nterim earnings or amounts earnable with reasonable diligence,”584 and an unconditional offer of the position sought by the plaintiff, even without retroactive seniority, usually 

terminates the accrual of liability for back pay.585

 

576. Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 361 (1977).

577. Albemarle Paper Co. v. Moody, 422 U.S. 405, 436 (1975).

578. See supra text accompanying notes 209–234.

579. § 706(g)(2)(B), 42 U.S.C. § 2000e-5(g)(2)(B) (2006).

580. § 706(g)(2)(B)(i), 42 U.S.C. § 2000e-5(g)(2)(B)(i) (2006). This subsection 

addresses only claims of intentional discrimination under § 703(m), 42 U.S.C. § 2000e2(m) (2006). Claims of disparate impact apparently fall under § 706(g)(2)(A), 42 U.S.C. 

§ 2000e-5(g)(2)(A) (2006). In class actions, in which most claims of disparate impact are 

brought, this subsection has been applied to reach essentially the same results as those 

under subsection (g)(2)(B). See infra text accompanying notes 596–98.

581. 422 U.S. 405 (1975).

582. Id. at 421.

583. Id. at 423–24. See City of Los Angeles Dep’t of Water & Power v. Manhart, 

435 U.S. 702, 718–23 (1978) (decision that employers could not use sex-segregated actuarial tables does not justify award of retroactive monetary relief); Arizona Governing 

Comm. v. Norris, 463 U.S. 1073, 1075 (1983) (per curiam) (same).

584. § 706(g)(1), 42 U.S.C. § 2000e-5(g) (2006).

585. Ford Motor Co. v. EEOC, 458 U.S. 219 (1982).
Major Issues in the Federal Law of Employment Discrimination

112

The Supreme Court has stated that the same liberal standard applies 

to awards of remedial seniority in determining both fringe benefits available from the employer and rights in competition with other employees.586 With respect to competitive seniority rights, however, the Court 

has applied the standard only to the award of “rightful place” seniority, 

which results in reinstatement of a victim of discrimination with full remedial seniority only after a vacancy arises in the relevant job.587 Contrary to the implication of the term, an award of “rightful place” seniority 

does not immediately put the victim of discrimination in his or her rightful place, because it does not allow an incumbent employee to be 

bumped out of his or her job to create a vacancy. Some courts have 

awarded “front pay” to victims of discrimination to compensate them for 

the period between entry of the judgment and occurrence of a vacancy 

that allows them to achieve their rightful place.588 Front pay differs from 

back pay only in providing compensation for the effects of discrimination that occur after, instead of before, entry of the judgment. It is not 

awarded as routinely as back pay, perhaps because of the difficulty of 

determining the future effects of past discrimination.589

Finally, one defendant cannot seek contribution from another for 

monetary awards paid under Title VII.590

Taxation

With the increasing importance of monetary relief of all kinds—

damages, back pay, and attorney’s fees—issues of taxation have become 

more important as well. These are not, in general, significant for employers, who can usually treat such amounts as a fully deductible business 

expense. For individual plaintiffs, however, it makes an enormous difference whether money obtained through judgments and settlements is included in taxable income. By an amendment to the Internal Revenue 

Code that specifically addresses this issue, these amounts are generally 

included in taxable income. Only damages “on account of personal phys-

 

586. Franks v. Bowman Transp. Co., 424 U.S. 747, 770–71 (1976).

587. Id. at 776–78.

588. E.g., White v. Carolina Paperboard Corp., 564 F.2d 1073, 1091 (4th Cir. 1977); 

Patterson v. Am. Tobacco Co., 535 F.2d 257, 269 (4th Cir.), cert. denied, 429 U.S. 920 

(1976).

589. E.g., Dillon v. Coles, 746 F.2d 998, 1005–06 (3d Cir. 1984).

590. Nw. Airlines v. Transp. Workers Union, 451 U.S. 77 (1981).
II. Procedures and Remedies in Title VII

113

ical injuries or physical sickness” are now excluded from income.591 Recoveries for back pay, front pay, emotional distress, and punitive damages, and any interest on these amounts, are included in income. Courtawarded attorney’s fees are also included in the plaintiff’s income, on the 

ground that the award of fees first goes to the plaintiff and only later to 

the plaintiff’s attorney. Including any of these amounts in income, without offsetting deductions, necessarily reduces the plaintiff’s net recovery 

after payment of taxes.

Plaintiffs face a further tax burden on their recovery if it is concentrated in a single taxable year. A basic principle of tax accounting applicable to “cash method” taxpayers (including nearly all individuals) requires the plaintiff to pay income tax on back pay, and other taxable 

recoveries, in the year in which the award is paid. It is not taxed as if it 

were spread out over the earlier years in which it should have been paid, 

and if it is not spread out over several later years, it is concentrated in a 

single year. This usually causes the plaintiff’s income for that year to be

taxed at a higher rate, and for a sufficiently large recovery, with the surcharge imposed under the alternative minimum tax (AMT).

The first of these consequences, bunching income in a single taxable 

year, can be counteracted by “grossing up” the plaintiff’s recovery for 

any amounts included in income. Following the principle of making the 

plaintiff whole, this technique works backward from the net income after 

taxes that the plaintiff would have received in the absence of discrimination. This amount is then augmented by an additional recovery that 

would be sufficient to pay the taxes attributable to the plaintiff’s entire, 

grossed-up recovery. When this recovery is then taxed, the plaintiff is 

left with the same after-tax income as he would have received in the absence of discrimination. This technique requires some approximation, as 

do all attempts to devise remedies based on what would have happened 

in the absence of discrimination. The contentious issue, on which the 

courts of appeals are divided, is whether the defendant can be required to 

pay a grossed-up recovery.592

 

591. 26 U.S.C. § 104(a)(2) (2008); Comm’r v. Burke, 504 U.S. 229 (1992); Comm’r 

v. Schleier, 515 U.S. 323 (1995).

592. Compare Eshelman v. Agere Sys., Inc., 554 F.3d 426 (3d Cir. 2009) (approving 

grossed-up recovery), with Dashnaw v. Pena, 12 F.3d 1112 (D.C. Cir. 1994) (denying 

grossed-up recovery).
Major Issues in the Federal Law of Employment Discrimination

114

The second consequence, specifically concerned with the AMT, 

comes into play only if attorney’s fees are included in the plaintiff’s income. If they are, they will usually cause the plaintiff’s income to rise 

above the threshold for application of the AMT, a complex set of provisions that, among other things, disallow deductions to individuals with a 

high ratio of deductible expense to annual income. Among the deductions disallowed are those ordinarily available for attorney’s fees. However, Congress alleviated this problem in discrimination cases, including 

those brought under the principal federal laws against employment discrimination, by a provision in the American Jobs Creation Act of 

2004.593 The effect of this provision is to permit a deduction for any attorney’s fees and court costs awarded or expended in connection with 

such cases, up to the amount of any judgment or settlement included in 

gross income, even for taxpayers subject to the AMT. However, in consolidated cases that arose before the effective date of the new legislation, 

the Supreme Court held that contingent fees are not excludable from adjusted gross income and so remain taxable to the plaintiff under the 

AMT.594 It follows that attorney’s fees not excluded under the new legislation remain taxable to the plaintiff, and the plaintiff’s ability to claim a 

deduction depends on the intricacies of the AMT.

Class Actions and Pattern-or-Practice Actions

In public actions or private actions brought on behalf of a class of employees or applicants, the litigation is usually bifurcated into a “liability” 

stage that determines whether the defendant has violated Title VII and a 

“recovery” stage that determines the eligibility of individual class members for compensatory relief. These stages approximate the distinction 

between class-wide issues and individual remedies, but they do not follow it exactly. After finding a class-wide violation, the court should decide whether to award class-wide relief, typically in the form of an injunction prospectively prohibiting the discriminatory practice.595 Usually 

it is only after deciding that issue that the court turns to the more difficult 

issue of individual relief for class members. Some opinions complicate 

the transition from the liability stage to the remedy stage still further by 

introducing the terminology of “prima facie case” to describe the effect 

 

593. 118 Stat. 1418 (2004), amending 26 U.S.C. § 62(a)(20).

594. Comm’r v. Banks, 543 U.S. 426 (2005).

595. Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 361 (1977).
II. Procedures and Remedies in Title VII

115

of finding a violation of Title VII.596 The term “prima facie case” is confusing because it has several meanings and because there is nothing 

“prima facie” about a finding of violation: The defendant has been found 

to have violated the law.

Because the defendant has already been found to have violated the 

statute, the defendant usually bears most of the burden of proving, during 

the recovery stage, that a class member is not entitled to compensatory 

relief. This principle, developed in judicial decisions, essentially anticipated the employer’s partial defense, codified by the Civil Rights Act of 

1991, that the plaintiff would have been rejected anyway for an entirely 

legitimate reason.597 The Act places the burden of proof for that defense 

entirely on the defendant. Similarly, in class actions and pattern-orpractice actions, a class member need only prove that he applied for the 

job in question in order to shift to the employer the burden of proving 

that he was not a victim of discrimination, for instance, because of lack 

of qualifications or the absence of a vacancy at the time of application.598

To obtain reinstatement, class members must also be qualified at the time 

reinstatement is offered, an additional issue upon which the employer 

apparently bears the burden of proof.599

A plaintiff who did not apply for the job at issue has the “not always 

easy burden of proving that he would have applied for the job” in the 

absence of discrimination.600 This requires a showing that the plaintiff 

was deterred from applying for the job by the employer’s discriminatory 

hiring practices. It also requires a showing that he or she possessed the 

qualifications that would have been revealed in an application.601 A nonapplicant who makes this showing is treated just like an applicant; the 

employer bears the burden of proving that the nonapplicant was not a 

victim of discrimination.602 The Supreme Court has granted compensatory relief to class members who have applied for a job, whether or not 

they were already employed by the employer, and to class members who 

 

596. E.g., United States v. U.S. Steel Corp., 520 F.2d 1043, 1053–54 (5th Cir. 

1975), cert. denied, 429 U.S. 817 (1976).

597. § 706(g)(2)(B), 42 U.S.C. § 2000e-5(g)(2)(B) (2006).

598. Teamsters, 431 U.S. at 361–62.

599. See Franks v. Bowman Transp. Co., 424 U.S. 747, 772–73 nn.31–32 (1976).

600. Teamsters, 431 U.S. at 362–71.

601. Id. at 367–71.

602. Id. at 369 & n.53.
Major Issues in the Federal Law of Employment Discrimination

116

were employees but who did not apply for a job.603 It is not clear that the 

Court would extend compensatory relief to class members who are neither employees nor applicants, since they are difficult to distinguish from 

members of the public at large.604

Attorney’s Fees

Section 706(k) authorizes the award of attorney’s fees to the prevailing 

party in Title VII cases.605 In Christiansburg Garment Co. v. EEOC,

606

the Supreme Court interpreted § 706(k) to require the award of attorney’s 

fees to prevailing plaintiffs “‘unless special circumstances would render 

such an award unjust,’”607 but to allow the award of attorney’s fees to 

prevailing defendants only if “‘the action brought is found to be unreasonable, frivolous, meritless or vexatious.’”608 The Court reasoned that 

fee awards to prevailing plaintiffs further the statutory purpose of eliminating discrimination, whereas fee awards to prevailing defendants further only the statutory purpose of discouraging meritless litigation.609

These principles apply to awards of attorney’s fees against the federal 

government and the states, despite the doctrine of sovereign immunity 

and the Eleventh Amendment, both of which have been overridden by 

explicit congressional enactment.610

 

603. Id. at 367–71; Franks, 424 U.S. at 771–72.

604. See Teamsters, 431 U.S. at 368 n.52. For a case extending such compensatory 

relief, however, see EEOC v. Joe’s Stone Crab Inc., 296 F.3d 1265, 1276-77 (11th Cir. 

2002).

605. § 706(k), 42 U.S.C. § 2000e-5(k) (2006). See generally Alan Hirsch & Diane 

Sheehey, Awarding Attorneys’ Fees & Managing Fee Litigation (2d ed. Federal Judicial 

Center 2005).

606. 434 U.S. 412 (1978).

607. Id. at 416–17 (quoting Newman v. Piggie Park Enters., 390 U.S. 400, 402 

(1968)).

608. Id. at 421 (quoting Carrion v. Yeshiva Univ., 535 F.2d 722, 727 (2d Cir. 

1976)). This same standard applies to awards of attorney’s fees against intervenors who 

have not been found to have violated the statute. Indep. Fed’n of Flight Attendants v. 

Zipes, 491 U.S. 754 (1989).

609. Christiansburg Garment, 434 U.S. at 420.

610. Id. at 422 n.20. See also Fitzpatrick v. Bitzer, 427 U.S. 445, 457 (1976). For 

claims under 42 U.S.C. § 1983 (2006), attorney’s fees can be awarded against a state only 

if relief is ordered against state officials acting in their official capacity. Kentucky v. 

Graham, 473 U.S. 159 (1985); Hutto v. Finney, 437 U.S. 678 (1978).
II. Procedures and Remedies in Title VII

117

Provisions for the award of attorney’s fees like § 706(k) are found in 

other federal civil rights laws611 and have received a similar interpretation.612 The most important condition for the award of attorney’s fees 

under these laws is the need to be a prevailing party. In several cases, the 

Supreme Court has denied an award of attorney’s fees altogether when 

the plaintiff has obtained only nominal judicial relief or a settlement 

short of a judicially enforceable judgment. In Hewitt v. Helms,

613 the 

plaintiffs obtained an opinion that state prison officials had acted in violation of the Constitution but were immune from liability for damages, 

the only relief the plaintiffs sought. Despite the fact that the prison officials revised their regulations to conform to the opinion, the plaintiffs 

were not prevailing parties entitled to an award of attorney’s fees.614 In 

Farrar v. Hobby,

615 the plaintiff obtained nominal damages of one dollar 

and so was a prevailing plaintiff, but because he had failed to establish a 

claim to any other form of relief, he was not entitled to an award of attorney’s fees. This decision is consistent with an earlier decision, Texas 

State Teachers Association v. Garland Independent School District,

616

which had allowed an award of attorney’s fees when the plaintiff succeeded on “‘any significant issue in litigation which achieve[d] some of 

the benefit the parties sought in bringing suit.’”617 The Court cautioned, 

however, that a “material alteration of the legal relationship of the par-

 

611. For the Equal Pay Act and the Age Discrimination in Employment Act, the 

provision is 29 U.S.C. § 216(a) (2006); see also id. § 626(b). For the Reconstruction civil 

rights acts, 42 U.S.C. §§ 1981, 1983 (2006), the provision is 42 U.S.C. § 1988 (2006). 

This statute also applies to claims under Title VI of the Civil Rights Act of 1964, 42 

U.S.C. §§ 2000d to 2000d-4 (2006), and Title IX of the Education Amendments of 1972, 

20 U.S.C. §§ 1681–1685 (2006). The Rehabilitation Act of 1973 incorporates by reference the enforcement provisions of Title VI and Title VII, 29 U.S.C. § 794a (2006), and 

the Americans with Disabilities Act incorporates the enforcement provisions of Title VII 

alone, 42 U.S.C. § 12117(a) (2006).

612. Hensley v. Eckerhart, 461 U.S. 424, 429–30, 433 n.7 (1983).

613. 482 U.S. 755 (1987).

614. Id. at 759–64. Accord Rhodes v. Stewart, 488 U.S. 1 (1994) (no award of attorney’s fees where prisoners’ claims became moot before district court entered declaratory 

judgment in their favor).

615. 506 U.S. 103 (1992).

616. 489 U.S. 782 (1989).

617. Id. at 791–92 (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278–79 (1st Cir. 

1978)). Accord Hensley, 461 U.S. at 433.
Major Issues in the Federal Law of Employment Discrimination

118

ties” was necessary and that “purely technical or de minimis” success 

was inadequate.618

Carrying this reasoning to its logical conclusion, the Court eventually held that a prevailing party must obtain a judgment on the merits or a 

judicially approved consent decree in order to recover attorney’s fees. In 

Buckhannon Board and Care Home, Inc. v. West Virginia Department of 

Health and Human Resources,

619 a case of housing discrimination, the 

plaintiffs had obtained the relief they sought from the state legislature, 

but without the entry of a judgment in their favor from the court. The 

Supreme Court held that serving as a “catalyst” for such relief was insufficient, offering a general interpretation of all the federal statutes authorizing the recovery of attorney’s fees. As a matter of statutory language, 

the authorization of fee awards only to a “prevailing party” requires entry 

of a judgment or consent decree in that party’s favor.620 As a matter of 

policy, where only injunctive and declaratory relief is sought, as in this 

case, the defendants might be deterred from making desirable changes if 

they could be assessed attorney’s fees for doing so, even in the absence 

of a judicially entered judgment.621

The preceding cases all concerned claims under statutes like Title 

VII, authorizing an award of attorney’s fees only to “the prevailing party.” The Civil Rights Act of 1991 might alter the interpretation of this 

phrase in a provision addressed to “mixed-motive” cases, in which the 

plaintiff proves discrimination but the defendant proves that the plaintiff 

would have been denied a job or fired for entirely legitimate reasons. 

This provision, discussed earlier,622 explicitly authorizes an award of attorney’s fees upon a finding that Title VII has been violated.623 An award 

of attorney’s fees might therefore be allowed more liberally under Title 

VII than under other statutes. However, this provision does not amend 

the section of the statute that generally authorizes the award of attorney’s 

 

618. Garland, 489 U.S. at 792–93.

619. 532 U.S. 598 (2001).

620. Id. at 603, 604.

621. Id. at 608.

622. See supra text accompanying notes 83-86.

623. § 706(g)(2)(B), 42 U.S.C. § 2000e-5(g)(2)(B) (2006).
II. Procedures and Remedies in Title VII

119

fees to the “prevailing party,” which is the phrase interpreted in decisions 

like Buckhannon. The circuits are divided on this question.

624

Qualifications and Exceptions

The general rule of Christiansburg Garment Co. v. EEOC625 regarding 

the award of attorney’s fees has been qualified by several exceptions, 

some of them dependent upon the particular statute under which the 

plaintiff claims relief. The first exception concerns the proceedings for 

which attorney’s fees may be received. Under Title VII, attorney’s fees 

may be awarded for state administrative proceedings, which must be exhausted before a Title VII claim is filed.626 Under the general civil rights 

statute, § 1983,627 however, the law is different. Since administrative 

remedies need not be exhausted under § 1983, attorney’s fees may not be 

awarded for local administrative proceedings, unless the attorney’s work 

in those proceedings contributes to later representation in court.628 Likewise, under other federal statutes that do not require exhaustion of administrative remedies, a claim that is entirely resolved in administrative 

proceedings cannot form the basis for a later action only to recover attorney’s fees.629 This principle may be inconsistent with, and therefore undermine, dicta in New York Gaslight Club v. Carey630 suggesting that a 

separate action could be brought only for attorney’s fees.631

The second exception concerns waiver of the right to an award of 

attorney’s fees, which may be exacted from the plaintiff in return for a 

favorable settlement. In Evans v. Jeff D.,

632 the Supreme Court upheld 

 

624. Compare Gudenkauf v. Stauffer Comm’cns, Inc., 158 F.3d 1074, 1077 (10th 

Cir. 1998) (allowing award of attorney’s fees in absence of other relief), with Canup v. 

Chipman-Union, Inc., 123 F.3d 1440, 1442 (11th Cir. 1997) (refusing to award attorney’s 

fees in absence of other relief), and Sheppard v. Riverview Nursing Ctr. Inc., 88 F.3d 

1332, 1335 (4th Cir. 1996), cert. denied, 519 U.S. 993 (1996) (allowing only nominal 

award of attorney’s fees).

625. 434 U.S. 412 (1978).

626. New York Gaslight Club v. Carey, 447 U.S. 54 (1980).

627. 42 U.S.C. § 1983 (2006).

628. Webb v. Bd. of Educ., 471 U.S. 234 (1985).

629. N. Carolina Dep’t of Transp. v. Crest St. Cmty. Council, 479 U.S. 6 (1986).

630. 447 U.S. 54 (1980).

631. The Circuits are in conflict on this question. Compare Chris v. Tenet, 221 F.3d 

648, 652 (4th Cir. 2000) (no separate action for attorney’s fees), with Jones v. Am. State 

Bank, 857 F.2d 494 (8th Cir. 1988) (separate action).

632. 475 U.S. 717 (1986).
Major Issues in the Federal Law of Employment Discrimination

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the denial of attorney’s fees on this ground even though the plaintiff had 

obtained affirmative relief in the settlement. The Court held that a waiver 

in settlement of a class action must be approved by the district court, like 

all other settlements in class actions.633 The Court strongly suggested, 

however, that in other actions, in which approval of settlements is not 

required, waivers should usually be enforced.634

The final, and related, exception arises from the operation of Federal 

Rule of Civil Procedure 68 in conjunction with fee-shifting statutes. Rule 

68 shifts some of the costs of an action from a losing defendant to a prevailing plaintiff. In particular, if the defendant makes a written offer of 

settlement which the plaintiff refuses to accept but which is more favorable than the judgment that the plaintiff eventually obtains, then all costs 

incurred after the offer are shifted onto the plaintiff. In Delta Air Lines v. 

August,

635 a Title VII case, the Supreme Court held that Rule 68 does not 

apply at all to a losing plaintiff because it would only encourage defendants to make nominal settlement offers.

In Marek v. Chesny,

636 an action under § 1983, the Court addressed a 

more complicated issue—“whether attorney’s fees incurred by a plaintiff 

subsequent to an offer of settlement under Federal Rule of Civil Procedure 68 must be paid by the defendant under 42 U.S.C. § 1988, when the 

plaintiff recovers a judgment less than the offer.”637 The defendants’ offer of settlement, which expressly included “costs now accrued and attorney’s fees,” exceeded the judgment recovered by the plaintiff after 

trial plus the attorney’s fees for pre-offer services, but it did not exceed 

the sum of these amounts plus the attorney’s fees for post-offer services. 

The Court first held that the defendants’ offer for damages and costs together was valid under Rule 68 and that it was properly compared with 

the judgment recovered by the plaintiff plus pre-offer costs. On the major 

issue in the case, the Court then held that the “costs” shifted to the plaintiff by Rule 68 included attorney’s fees awardable under § 1988 to prevailing parties, and therefore that the plaintiff could not recover his attorney’s fees incurred after the offer of settlement. The Court emphasized 

the plain meaning of Rule 68, which authorizes the shifting only of 

 

633. Id. at 738–40; Fed. R. Civ. P. 23(e).

634. Evans, 475 U.S. at 738 & n.30.

635. 450 U.S. 346 (1981).

636. 473 U.S. 1 (1985).

637. Id. at 3.
II. Procedures and Remedies in Title VII

121

“costs” incurred after the offer of settlement, and of § 1988, which authorizes an award of attorney’s fees “as part of the costs.”638 For this reason, the Court’s holding may not apply directly to other fee-shifting statutes that do not define attorney’s fees as part of the costs, such as 

§ 706(k) of Title VII. The Court did not hold that the defendants’ attorney’s fees were shifted onto the plaintiff, but only that the plaintiff’s 

post-offer attorney’s fees could not be shifted onto the defendants. Given 

the Court’s decision in Delta Airlines, it is doubtful that the Court would 

ever hold that a defendant’s attorney’s fees could be shifted onto the 

plaintiff. If Rule 68 does not shift the defendant’s attorney’s fees onto a 

plaintiff who does not recover anything at all, it is unlikely that it shifts 

them onto a plaintiff who recovers less than the amount of the defendant’s offer of settlement.

How an Award Is Computed

The leading decision on computing the amount of an award of attorney’s 

fees is Hensley v. Eckerhart,

639 which established a two-step process applicable to all statutes that authorize an award of attorney’s fees to the 

prevailing party.640 First, the court should compute “the lodestar”: the 

number of hours reasonably expended multiplied by a reasonable hourly 

rate. Second, the court should adjust the lodestar figure up or down to 

take account of other factors, chief among them the results obtained by 

the plaintiff. If the plaintiff has been only partially successful, the lodestar figure must be reduced so that it reflects only hours reasonably expended on claims on which the plaintiff prevailed or on related claims. 

Conversely, if the plaintiff has been exceptionally successful, the lodestar figure may be enhanced. In determining which hours were reasonably expended, “the most critical factor is the degree of success obtained.”641 Other factors may also be taken into account in adjusting the 

lodestar figure, but only to the extent that they are not already reflected 

in the lodestar figure itself.642 The lodestar also includes the hours reasonably expended by paralegals and law clerks,643 and under Title VII, 

 

638. 42 U.S.C. § 1988 (2006).

639. 461 U.S. 424 (1983).

640. Id. at 433 n.7.

641. Id. at 436.

642. Id. at 434 n.9.

643. Missouri v. Jenkins, 491 U.S. 274, 283 (1989).
Major Issues in the Federal Law of Employment Discrimination

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awards of costs can also include fees for experts,644 essentially treating 

other professionals like attorneys.

The lodestar method of calculating awards of attorney’s fees has 

been largely confirmed by the Supreme Court’s subsequent decisions. In 

Blum v. Stenson,

645 the Court held that a 50% increase in the lodestar figure was not justified by the complexity or novelty of the issues, the skill 

of counsel, the results obtained, or the risks of litigation. None of these 

factors was out of the ordinary, and all were adequately reflected in the 

lodestar figure. In Pennsylvania v. Delaware Valley Citizens’ Council,

646

the Court twice considered, but did not definitively resolve, the question 

whether the lodestar figure can be adjusted upward to take account of the 

plaintiff’s risk of loss and counsel’s risk of not being compensated at all. 

In City of Burlington v. Dague,

647 the Court finally held that no enhancement of the lodestar was permitted on those grounds. To the extent 

that the risk of loss reflects factors that should be used to enhance the 

award—such as the difficulty of the case—these were already taken into 

account in computing the lodestar. To the extent that the risk of loss reflects the merits of the case, it should not be used to enhance awards of 

attorney’s fees and, consequently, encourage plaintiffs to bring weak 

cases.648 Just as the risk of loss cannot be used to enhance an award of 

attorney’s fees, so, too, a contingent-fee contract between the plaintiff 

and his or her attorney cannot be used to reduce the fees awarded.649

The strength of the presumption in favor of the lodestar figure is illustrated—although in a manner not fully consistent with Hensley—by 

City of Riverside v. Rivera.

650 In this case the Court affirmed an award of 

$245,000 in attorney’s fees to plaintiffs who had recovered a total of 

$33,000 against police officers as a result of an illegal search and arrest. 

For a plurality of four, Justice Brennan held that the district court’s findings were sufficient to support the lodestar figure as a reasonable fee 

award. He specifically rejected the contention that the fee award must be 

 

644. § 706(k), 42 U.S.C. § 2000e-5(k) (2006). This provision also applies to claims 

under 42 U.S.C. §§ 1981, 1981a. 42 U.S.C. § 1988(c) (2006).

645. 465 U.S. 886 (1984).

646. 478 U.S. 546 (1986), on reargument, 483 U.S. 711 (1987).

647. 505 U.S. 557 (1992).

648. Id. at 563.

649. Blanchard v. Bergeron, 489 U.S. 87, 93 (1989).

650. 477 U.S. 561 (1986).
II. Procedures and Remedies in Title VII

123

proportional to the relief obtained.651 Justice Powell concurred in the 

judgment on the ground that the district court’s detailed findings of fact 

justified the fee award, but he expressed “serious doubts as to the fairness of the fees awarded in this case.”652 Because Justice Powell concurred only in the judgment and because four justices dissented on the 

ground that the fee award greatly exceeded the relief obtained,653 the decision necessarily is closely tied to the facts of this case. Yet it does not 

undermine, but confirms, the central role of the lodestar method in calculating court-awarded attorney’s fees.

Preclusion

The usual rules of preclusion generally apply to actions under Title VII. 

Thus, federal courts are bound by the decisions of state courts under the 

ordinary rules of full faith and credit, even if these decisions simply review decisions of state or local administrative agencies.654 So, too, a conciliation agreement that awards a job to a charging party under Title VII 

does not bar another individual, displaced from the job, from suing for 

violation of the collective bargaining agreement.655

These general rules are subject to only two qualifications or exceptions. The first exception concerns the requirement of exhaustion of administrative remedies and is not at all problematic. When considering a 

claim under Title VII, a court is not bound by the decision of an administrative agency—whether state or local—or the EEOC itself.656 This conclusion is necessary so that the statutory requirement of exhaustion of 

administrative remedies does not become the effective equivalent of administrative adjudication. According binding effect to the decision of an 

administrative agency would make its decision final instead of the 

court’s subsequent decision.

 

651. Id. at 574 (Brennan, J.).

652. Id. at 586 (Powell, J., concurring in the judgment).

653. Id. at 588–91 (Rehnquist, J., dissenting).

654. Kremer v. Chem. Constr. Corp., 456 U.S. 461 (1982).

655. W.R. Grace & Co. v. Local Union 759, 461 U.S. 757, 771 (1983).

656. University of Tenn. v. Elliott, 478 U.S. 788, 795–96 (1986); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798–800 (1973). However, the federal courts may be 

bound by the unreviewed decisions of state agencies as they affect claims under other 

federal statutes. University of Tenn., 478 U.S. at 796–99.
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The second exception concerns affirmative action and is therefore 

more complex and more controversial. The Supreme Court initially applied the usual rules of preclusion to affirmative action plans established 

by consent decrees and subsequently attacked by white employees or 

unions that represented them.657 In two cases, the Court held that consent 

decrees were binding only on the parties who signed them and on other 

persons in privity with them. In the most controversial of these cases, the 

Court held that persons who were not a party to the underlying action 

were under no duty to intervene to object to the consent decree in order 

to preserve their objections to it.658 This decision, to the extent it was not 

based on constitutional considerations, was superseded by the Civil 

Rights Act of 1991. The Act contains elaborate provisions making judgments and consent decrees binding on nonparties with actual notice of 

the proposed order and an opportunity to object to it, as well as on nonparties whose interests were adequately represented by an existing party.659 This extended preclusive effect, however, is subject to several limitations, the most important being the requirements of due process.660

Despite these limitations, the immediate effect of court orders has 

usually been conceded, and even when they have been open to collateral 

attack, the orders generally have not been invalidated for this reason 

alone. An examination of the merits of the affirmative action plan also is 

necessary.661 Such court orders, particularly when they involve affirmative action plans, have been most frequently set aside for entirely different reasons. The original defendants, or intervenors who are otherwise 

bound by the court order, have argued in favor of setting aside the order 

either because of changed circumstances or because the purpose for 

which the order was originally entered has been fulfilled.662 In these chal-

 

657. Martin v. Wilks, 490 U.S. 755, 763 (1989); Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 514 (1986).

658. Martin, 490 U.S. at 765.

659. § 703(n)(1)(B), 42 U.S.C. § 2000e-2(n)(1)(B) (2006).

660. § 703(n)(2), 42 U.S.C. § 2000e-2(n)(2) (2006).

661. E.g., Local No. 93, Int’l Ass’n of Firefighters, 478 U.S. at 515–24; Rutherford 

v. City of Cleveland, 137 F.3d 905, 908 (6th Cir. 1998).

662. E.g., Patterson v. Newspaper & Mail Deliverers’ Union of N.Y., 13 F.3d 33, 38 

(2d Cir. 1993); Detroit Police Officers Ass’n v. Young, 989 F.2d 225, 228 (6th Cir. 

1993); Bhd. of Midwest Guardians Inc. v. City of Omaha, 9 F.3d 677, 679–80 (8th Cir. 

1993).
II. Procedures and Remedies in Title VII

125

lenges, essentially on direct attack, arguments over who can collaterally 

attack the judgment have played a minimal role.

127

III. Age Discrimination in Employment Act

Prohibitions and Exceptions

The Age Discrimination in Employment Act (ADEA) prohibits discrimination on the basis of age against anyone who is at least 40 years old.663

The ADEA was enacted following the Civil Rights Act of 1964, on the 

basis of a report commissioned by Congress on employment discrimination against older workers. It differs from Title VII, however, in extending the prohibition against discrimination to grounds not generally recognized in the Constitution. Unlike race or sex, age can serve as the basis 

for government classifications whenever it rationally serves a legitimate 

government interest.664 Consistent with this lenient standard of judicial 

review, the ADEA does not cover individuals under the age of 40 at all, 

and even among covered individuals, the ADEA only protects them from 

discrimination on the ground that they are too old, not that they are too 

young.665

As originally enacted, the ADEA contained an upper limit on the age 

of those covered, but it has been amended several times, first raising this 

limit and then abandoning it entirely.666 The Act applies to all private 

employers with at least twenty employees, to state and local government, 

and to most of the federal government,667 but not to elected officials or 

certain of their appointees.668

The provisions of the ADEA, both substantive and procedural, reflect a combination of Title VII and the Equal Pay Act. For instance, like 

the Equal Pay Act, the ADEA requires discrimination in wages to be 

eliminated only by raising wages.669 The ADEA also resembles Title VII 

in the method of proving individual claims of disparate treatment, in particular, by using the structure of burdens of production set forth in

 

663. Id. § 631.

664. Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312–14 (1976).

665. General Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 597–600 (2004).

666. 29 U.S.C. § 631(a) (2006).

667. Id. §§ 630(b), 633a. The application of the ADEA to the states has been held 

constitutional over a claim that it violated state sovereignty under the Tenth Amendment. 

EEOC v. Wyoming, 460 U.S. 226 (1983). The ADEA also applies to unions and employment agencies. 29 U.S.C. § 630(c), (d), (e) (2006).

668. 29 U.S.C. § 630(f) (2006).

669. Id. § 623(a)(3).
Major Issues in the Federal Law of Employment Discrimination

128

McDonnell Douglas Corp. v. Green.

670 The Supreme Court has explicitly 

reserved the question whether the structure of proof from McDonnell 

Douglas applies in ADEA cases. The Court made this point in Gross v. 

FBL Financial Services, Inc.,

671 during the course of holding that the 

burden of proof rests always with the plaintiff under the ADEA, even in 

mixed-motive cases. In Gross the Court emphasized both that interpretation of the ADEA was independent of amendments made to Title VII and 

that nothing in the ADEA departed from the usual principal in civil litigation that the plaintiff must prove “but for” causation—that age was the 

necessary cause of the adverse action taken by the employer.

672 Accordingly, if an employer argues that it would have taken the same action 

against the plaintiff regardless of age, the plaintiff bears both the burden 

of production and the burden of persuasion on this issue. No burden of 

proof switches to the defendant.

The potentially different treatment of age discrimination arises from 

the nature of age differences as matters of degree, often correlated with 

other individual characteristics. If the plaintiff is replaced by someone 

only slightly younger, this small difference might not support a finding 

of age discrimination.673 Likewise, discrimination on the basis of age 

must be distinguished from discrimination based on time of service with 

the employer. In Hazen Paper Co. v. Biggins,

674 the Supreme Court held 

that a finding of intentional discrimination could not be based solely on 

the employer’s reliance on a factor correlated with age, in that case, the 

imminent vesting of pension rights. Although a discharge for this reason 

violates the Employee Retirement Income Security Act (ERISA),675 it 

supports a finding of age discrimination only with additional evidence 

that age was a factor in the employer’s decision.676 This holding was recently extended in a case concerned with pension benefits for disabled 

 

670. 411 U.S. 792 (1973).

670. 129 S. Ct. 2343 (2009).

671. Id. at 2348-52. In particular, the Civil Rights Act of 1991 added §§ 703(m) and 

706(g)(2)(B), 42 U.S.C. §§ 2000e-2(m), 2000e-5(g)(2)(B) (2006), to Title VII. No corresponding amendments were made to the ADEA.

673. O’Connor, 517 U.S. at 312-13.

674. 507 U.S. 604 (1993).

675. 29 U.S.C. §§ 1001–1461 (2006), and scattered sections of 5, 18, and 26 U.S.C. 

(2006). See generally Peter J. Weidenbeck, ERISA in the Courts (Federal Judicial Center 

2008).

676. Hazen Paper, 507 U.S. at 608–14.
III. Age Discrimination in Employment Act

129

employees.677 These benefits were available only to employees who became disabled before they were eligible for retirement at age 55, but they 

did not always result in greater total benefits than those available to employees who retired after age 55. The Supreme Court held that any difference in benefits resulted from pension status rather than age. The correlation of age with pension status did not, by itself, support an inference 

of age discrimination.678 For similar reasons, some courts of appeals have 

held that the higher salary of older workers who have been discharged or 

laid off does not support an inference of age discrimination.679

Class-wide claims can also be proved by statistical evidence under 

the ADEA, as they can under Title VII, but the theory of disparate impact under the ADEA differs in significant respects from the theory under Title VII. In particular, the Civil Rights Act of 1991 codified the theory of disparate impact only under Title VII,

680 leading the Supreme 

Court to conclude that it applied under the ADEA only in the form in 

which it had existed prior to 1991. In Smith v. City of Jackson,

681 the 

Court applied the theory as it existed under Wards Cove Packing Co. v. 

Atonio,

682 which required the plaintiff to identify a specific employment

practice that caused the alleged disparate impact and which imposed on 

the defendant the burden of showing that “a challenged practice serves, 

in a significant way, the legitimate employment goals of the employer.” 

This showing, moreover, was subject only to “a reasoned review” by the 

court.683 The decision in Smith was closely divided, with some justices 

refusing to apply the theory of disparate impact at all under the ADEA, 

but assuming that it did apply, they would have applied it only in the 

weaker form under Wards Cove.

684 Justice Scalia provided the crucial 

fifth vote for the Court’s decision, based only on EEOC regulations rec-

 

677. Kentucky Ret. Sys. v. EEOC, 554 U.S. 135 (2008).

678. Id. at 143–48.

679. Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1125–26 (7th Cir. 1994); 

Cramer v. McDonnell Douglas Corp., 120 F.3d 874, 876 n.5 (8th Cir. 1997); Amburgey 

v. Corhart, 936 F.2d 805, 813 (5th Cir. 1991).

680. § 703(k), 42 U.S.C. § 2000e-2(k) (2006). See generally Howard Eglit, The Age 

Discrimination in Employment Act, Title VII, and the Civil Rights Act of 1991: Three Acts 

and a Dog That Didn’t Bark, 39 Wayne L. Rev. 1093, 1127–50 (1993).

681. 544 U.S. 228 (2005).

682. 490 U.S. 642 (1989).

683. Id. at 656–61.

684. Smith, 544 U.S. at 267-68 (O’Connor, J., concurring in the judgment).
Major Issues in the Federal Law of Employment Discrimination

130

ognizing the theory of disparate impact.685 The Court largely confirmed 

this decision but modified it in one important respect, in Meacham v. 

Knolls Atomic Power Laboratory, Inc.686 The Court there reaffirmed the 

application of the theory of disparate impact under the ADEA but made 

clear that the entire burden of proof, both of production and persuasion, 

shifted to the employer to justify a practice with disparate impact. This 

conclusion followed from the defense available under the ADEA for decisions based on “reasonable factors other than age” (RFOA). 687 As an 

affirmative defense, the RFOA placed the entire burden of proof upon 

the employer.688

The RFOA provision also complicates the treatment of individual 

claims of intentional discrimination under the ADEA. Along with a defense for discipline or discharge “for good cause,” the provision seems to 

shift the entire burden of proof onto the defendant after the plaintiff has 

made out a prima facie case under McDonnell Douglas. Nevertheless, the 

courts that have considered this issue have refused to place more than the 

burden of production on the defendant, holding that these defenses come 

into play only after the plaintiff has already proved that age caused the 

disputed employment decision.689 This conclusion accords with the recent holding in Gross v. FBL Financial Services, Inc.,

690 imposing the 

entire burden of proof on the plaintiff to show that age was the “but for” 

cause.

Like both Title VII and the Equal Pay Act, the ADEA contains defenses for bona fide seniority systems691 and for reliance on administrative interpretations.692 Also like Title VII, the ADEA generally exempts 

from coverage the operation of foreign corporations in foreign countries, 

 

685. 243-48 (Scalia, J., concurring in part and concurring in the judgment).

686. 128 S. Ct. 2395 (2008).

687. 29 U.S.C. § 623(f)(1) (2006).

688. Id. at 2400-05.

689. See Marshall v. Westinghouse Elec. Corp., 576 F.2d 588, 590–92 (5th Cir. 

1978). See also supra text accompanying notes 79–95. The Supreme Court has reserved 

decision on this question. W. Air Lines, Inc. v. Criswell, 472 U.S. 400, 408 n.10 (1985). 

It also suggested in both Smith and Meacham that “the RFOA provision plays its principal role” in disparate impact cases. Smith, 544 U.S. at 239; Meacham, 128 S. Ct. at 2403.

689. 129 S. Ct. 2343, 2349 (2009).

691. 29 U.S.C. § 623(f)(2) (2006).

692. Id. §§ 626(e)(1), 259.
III. Age Discrimination in Employment Act

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unless they are controlled by an American employer.693 The ADEA also 

contains some unique exceptions: for certain executives over the age of 

sixty-five,

694 and for administratively created exceptions, which have 

been limited to programs of public employment for “the long-term unemployed, handicapped, members of minority groups, older workers, or 

youth.”695 Three different occupational groups—firefighters, law enforcement officers, and tenured professors at colleges and universities—

have been subject to changing statutory provisions. The original exceptions for these occupations allowed employers to impose maximum ages 

of employment, or what is virtually the same thing—ages of mandatory 

retirement.696 These exceptions expired at the end of 1993, only to be 

reinstated later in different form. States and localities can now set a maximum age for employment of firefighters and law enforcement officers, 

as well as an age for mandatory retirement.697 Colleges and universities 

cannot impose mandatory retirement upon tenured professors, but they 

can increase the incentives for early retirement.698

Special provisions also apply to “a bona fide seniority system that is 

not intended to evade the purposes of this chapter.”699 Moreover, “no 

such employee benefit plan shall excuse the failure to hire any individual, and no such seniority system or employee benefit plan shall require or 

permit the involuntary retirement for any [covered individual] because of 

the age of such individual.”700 This qualification was added after the provision had been interpreted to permit retirement plans that required the 

retirement of covered individuals.701 Congress rejected this interpretation 

by drastically narrowing the scope of the exception. When the Supreme 

Court continued to read the exception to allow any form of age discrimination within a pension plan (but not outside it), Congress again amended the statute to narrow the exception.702 The amendment allows classifi-

 

693. Id. § 623(h).

694. Id. § 631(c).

695. 29 U.S.C. § 628 (2006); 29 C.F.R. § 1627.16 (2010).

696. Age Discrimination in Employment Act of 1986, Pub. L. No. 99-592, §§ 3, 6, 

100 Stat. 3342 (1986).

697. 29 U.S.C. § 623(j) (2006).

698. Id. § 623(m).

699. 29 U.S.C. § 623(f)(2)(A) (2006).

700. Id.

701. United Air Lines, Inc. v. McMann, 434 U.S. 192 (1977).

702. 29 U.S.C. § 623(f)(2)(B).
Major Issues in the Federal Law of Employment Discrimination

132

cations on the basis of age only if they are cost-justified according to 

specified EEOC regulations or if they are part of “a voluntary early retirement incentive plan consistent with the relevant purpose or purposes 

of this chapter.”703 Other, highly technical provisions apply to pension 

plans and to employee benefit plans generally.704 All of these provisions 

have the common purpose of protecting the benefits available to older 

workers while recognizing the needs of employers to provide an orderly 

transition to retirement.

Another provision, closely related in function to those regulating 

pension plans, concerns waiver of claims under the ADEA.705 All waivers must be for additional consideration, apart from benefits that the employee already receives, and must be subject to waiting periods during 

which the employee can consider the waiver and, in some instances, revoke it after entering into it.706 Further restrictions apply to waivers “in 

connection with an exit incentive or other employment termination program offered to a group or class of employees.”707 This last provision 

applies to early retirement plans, but waivers also figure in the settlement 

of ADEA claims, which frequently involve the payment of retirement 

benefits to increase the plaintiff’s total recovery. These, too, are subject 

to many of the same restrictions as other waivers.708 All these restrictions 

limit the ability of employers to take advantage of older workers by offering retirement on terms that seem beneficial to them but that are, on 

balance, against their interests. The possibility of a bargain to the mutual 

benefit of employers and employees nevertheless remains open. The 

ADEA does not completely displace contracts as a mechanism for determining the rights of older workers.

The ADEA contains a defense for BFOQs on the basis of age,709

modeled on the same defense under Title VII.710 In Western Air Lines, 

 

703. Id.

704. Id. §§ 623(j)–(l). For a decision applying these provisions to medical benefits 

for retirees, see Erie County Retirees Ass’n v. County of Erie, 220 F.3d 193, 214–17 (3d 

Cir. 2000).

705. 29 U.S.C. § 626(f).

706. See Oubre v. Entergy Operations, Inc., 522 U.S. 422, 428 (1998) (allowing 

employees to revoke waiver without tendering back benefits received under it). The implementing regulations for this provision are found at 29 C.F.R. §§ 1625.22, .23 (2001).

707. 29 U.S.C. § 626(f)(1)(H) (2006).

708. Id. § 626(f)(2).

709. Id. § 623(f)(1).
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133

Inc. v. Criswell,

711 the Supreme Court gave the two defenses the same 

interpretation: “[L]ike its Title VII counterpart, the BFOQ exception 

‘was in fact meant to be an extremely narrow exception to the general 

prohibition’ of age discrimination contained in the ADEA.”712 The Court 

then endorsed the more specific test for the BFOQ exception based on 

safety considerations articulated in Usery v. Tamiami Trail Tours, Inc.:

713

[T]he job qualifications which the employer invokes to justify his 

discrimination must be reasonably necessary to the essence of his 

business—here, the safe transportation of bus passengers from one 

point to another. The greater the safety factor, measured by the likelihood of harm and the probable severity of that harm in case of an accident, the more stringent may be the job qualifications designed to 

insure safe driving.714

The Court then applied this standard to jury instructions concerned with 

mandatory retirement of flight engineers at age sixty. It held that the instructions properly required the defendant to establish more than “a rational basis in fact” for believing that qualifications for the job cannot be 

determined on an individualized basis.715

In two other cases during the same term, the Court again emphasized 

the narrow scope of the BFOQ defense. In Trans World Airlines, Inc. v. 

Thurston,

716 another case concerned with qualifications for airline crew 

members, the Court held that the BFOQ defense did not permit restrictions on transfers from a position for which there was a BFOQ to 

one for which there was no BFOQ. TWA had restricted transfers to the 

position of flight engineer by captains and first officers who were age 

sixty or over and who could no longer serve in those positions under regulations of the Federal Aviation Administration (FAA). No similar regulations applied to the position of flight engineer. The parties did not dispute the BFOQ for captains and first officers based on the FAA 

regulations or the absence of a BFOQ for flight engineers.717 The Court 

 

710. 42 U.S.C. § 2000e-2(e)(1) (2006). See supra text accompanying notes 292–311.

711. 472 U.S. 400 (1985).

712. Id. at 412 (quoting Dothard v. Rawlinson, 433 U.S. 321, 334 (1977)); see Int’l 

Union v. Johnson Controls, Inc., 499 U.S. 187, 202 (1991).

713. 531 F.2d 224 (5th Cir. 1976).

714. Criswell, 472 U.S. at 413 (quoting Usery, 531 F.2d at 236).

715. Id. at 417–23 (emphasis omitted from quoted phrase).

716. 469 U.S. 111 (1985).

717. Id. at 123 nn.17, 18.
Major Issues in the Federal Law of Employment Discrimination

134

held that the absence of a BFOQ for the position to which transfer was 

sought, that of flight engineer, was decisive. The BFOQ defense depends 

only on the nature of the job from which the employee transfers. However, in the reverse situation, in which an airline imposed age restrictions 

on flight engineers because they must be eligible to advance to the position of captain or first officer, a BFOQ has been upheld.718

In Johnson v. Mayor of Baltimore,

719 the Court rejected a broad interpretation of the BFOQ based on a federal statute requiring certain federal law enforcement officers and firefighters to retire at age fifty-five.720

The Court found that the federal statute was enacted long before the 

ADEA for reasons entirely unrelated to the BFOQ defense. The Court 

also found that when the ADEA was extended to firefighters in 1978, the 

federal mandatory retirement statute was preserved only to enable the 

appropriate legislative committees to review its provisions. Although the 

ADEA is subject to several exceptions, as this decision illustrates, they 

tend to be narrowly construed to cover only the employment practices 

specifically identified by Congress.

Procedures and Remedies

The ADEA is generally enforced according to the procedures of the Fair 

Labor Standards Act (FLSA), although it requires exhaustion of administrative remedies and provides special procedures for federal employees. 

Modeled in other respects on Title VII, the ADEA explicitly adopts the 

enforcement procedures of the FLSA for public and private actions.721

Public enforcement of the ADEA was transferred to the EEOC.722 Actions by the EEOC need not be preceded by exhaustion of state administrative remedies or by filing a charge with the EEOC, but they must be 

preceded by an attempt at conciliation.723 The relationship between pub-

 

718. Johnson v. Am. Airlines, Inc., 745 F.2d 988 (5th Cir. 1984) (upholding jury 

verdict), cert. denied, 472 U.S. 1027 (1985).

719. 472 U.S. 353 (1985).

720. 5 U.S.C. § 8335(b) (2006).

721. 29 U.S.C. § 626(b) (2006).

722. Reorganization Plan No. 1 of 1978, § 2, reprinted in 5 U.S.C. app. at 206 

(2006), and in 92 Stat. 3781 (1978).

723. 29 U.S.C. § 626(b) (2006).
III. Age Discrimination in Employment Act

135

lic actions and private actions remains the same as it is under the Equal 

Pay Act and the FLSA.724

Private actions must be preceded by the filing of a charge with the 

EEOC, followed by a 60-day waiting period to allow the EEOC to attempt conciliation.725 In states that do not have an agency that enforces a 

state law against employment discrimination on the basis of age, the 

charge must be filed with the EEOC within 180 days of the alleged discrimination.726 In states that do have an enforcement agency, the charge 

must be filed with the EEOC within 300 days of the alleged discrimination or 30 days of notice of termination of state proceedings, whichever 

is earlier.727 The ADEA explicitly grants parties the right to jury trial.728

Any waiver of an individual’s rights under the ADEA must meet strict 

statutory requirements to ensure that it is “knowing and voluntary.”729

Individuals must file their actions in court within 90 days of receiving a right-to-sue letter.730 The EEOC, however, is not subject to any explicit limitations for filing its actions, apart from the equitable doctrine of 

laches also applied to the EEOC under Title VII.731

Remedies under the ADEA are the same as those under the FLSA, 

with two qualifications: that liquidated damages, in an amount equal to 

actual damages, are payable only for “willful violations” and that the 

court is authorized to grant “such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter.”732 In Trans World 

Airlines, Inc. v. Thurston,

733 the Supreme Court considered the meaning 

of “willful violations” sufficient for the award of liquidated damages. 

The Court accepted the standard articulated by the court of appeals but 

 

724. Id. §§ 626(b), 216(b)–(c). See infra text accompanying notes 959–66.

725. 29 U.S.C.A. § 626(d)(1) (2010).

726. Id. § 626(d)(1)(A).

727. Id. § 626(d)(1)(B).

728. Id. § 626(c)(2).

729. Id. § 626(f).

730. 29 U.S.C. § 626(e) (2006). One court, however, has held that the statutory language does not preclude the plaintiff from filing under the FLSA limitation period if it 

extends beyond the 90-day period from receipt of a right-to-sue letter. Simmons v. Al 

Smith Buick Co., 841 F. Supp. 168 (E.D.N.C. 1993). Contra Crivella v. Urban Dev. 

Auth., 64 Fair Empl. Prac. Cas. (BNA) 1 (W.D. Pa. 1994).

731. Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 358–66, 372–73 (1977).

732. 29 U.S.C. § 626(b) (2006).

733. 469 U.S. 111 (1985).
Major Issues in the Federal Law of Employment Discrimination

136

disagreed over its application. The standard was whether “‘the employer 

... knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA.’”734 The Court interpreted this standard to be substantially the same as the standard for determining willfulness under the provision for criminal penalties in the FLSA and the 

Equal Pay Act.735 On the record before it, the Court held that the employer had not acted willfully because it had sought the advice of counsel 

and had negotiated with the union to modify its collective bargaining 

agreement to conform to the Act. Subsequent cases have offered different interpretations of Thurston. The Third Circuit has required “some 

additional evidence of outrageous conduct,”736 but the Eleventh Circuit 

has disagreed.737 The Supreme Court itself has made clear that Thurston

requires more than unreasonable action by the defendant.738

The ADEA creates special procedures for claims by federal employees that are similar to those under Title VII. The EEOC has succeeded 

the Civil Service Commission as the agency that adjudicates age discrimination complaints by federal employees.739 Federal employees can pursue their claims either through administrative proceedings (in which case 

they must follow the same procedures as those under Title VII740) or directly through judicial proceedings. If the latter, they must file an intent 

to sue with the EEOC within 180 days of the alleged discrimination and 

no less than 30 days before they file their action in court.741 The action in 

court must be commenced within an appropriate limitation period borrowed from either state or federal law.742 The Act authorizes actions in 

 

734. Id. at 128–29 (quoting Air Line Pilots Ass’n v. Trans World Airlines, 713 F.2d 

940, 956 (1983)).

735. 29 U.S.C. § 216(a) (2006); Thurston, 469 U.S. at 125–26.

736. Dreyer v. Arco Chem. Co., 801 F.2d 651, 658 (3d Cir. 1986), cert. denied, 480 

U.S. 906 (1987).

737. Lindsey v. Am. Cast Iron Pipe Co., 810 F.2d 1094, 1099–1101 (11th Cir. 

1987).

738. McLaughlin v. Richland Shoe Co., 486 U.S. 128, 135 & n.13 (1988). The same 

standard also governs determination of willfulness for the three-year limitation that applies to claims under the Equal Pay Act. Id. at 131.

739. 29 U.S.C. § 633a(a) (2006); Reorganization Plan No. 1 of 1978, § 2, reprinted 

in 5 U.S.C. app. at 206, and in 92 Stat. 3781 (1978).

740. See supra text accompanying notes 533–48.

741. 29 U.S.C. § 633a(d) (2006).

742. Stevens v. United States Dep’t of the Treasury, 500 U.S. 1, 7 (1991).
III. Age Discrimination in Employment Act

137

federal court for “such legal or equitable relief as will effectuate the purposes of this chapter.”743

The only exception to this broad remedial provision arises not from 

the statute but from constitutional decisions under the Eleventh and Fourteenth Amendments. In Kimel v. Florida Board of Regents,

744 the Supreme Court held that the ADEA could not be enforced against the states 

or their instrumentalities through the award of damages. The Eleventh 

Amendment prohibits suits against the states in federal court, and the 

Fourteenth Amendment does not authorize Congress to abrogate this 

immunity for discrimination on the basis of age.745 The first of these 

holdings is unexceptional, but as applied to civil rights statutes such as 

Title VII, it is also insignificant. Congress exercised its powers under 

section 5 of the Fourteenth Amendment to apply Title VII to the states, 

and in doing so, acted to abrogate the immunity that the states otherwise 

possessed.746 It is the second holding in Kimel that is crucial: that Congress exceeded its powers to enforce the Fourteenth Amendment by prohibiting age discrimination by the states. This holding follows directly 

from the reduced scrutiny that classifications on the basis of age receive 

under the Constitution.747

As the Court was careful to point out, however, a prior decision had 

held that Congress had properly exercised its powers under the Commerce Clause in applying the ADEA to the states.748 Thus, the substantive provisions of the ADEA remain binding upon the states, although 

enforcement depends upon a range of subsidiary issues developed in the 

decisions under the Eleventh Amendment. First, not all components of 

state government are “arms of the state” that benefit from its immunity 

from suit. Cities and other units of local government are sufficiently in-

 

743. 29 U.S.C. § 633a(c) (2006).

744. 528 U.S. 62 (2000).

745. Id. at 73–78.

746. Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976). For this reason, the Eleventh 

Amendment has not restricted the remedies or substantive theories of liability under statutes prohibiting race or sex discrimination. In re Employment Discrimination Litig. 

Against the State of Ala., 198 F.3d 1305, 1324 (11th Cir. 1999) (theory of disparate impact applies against states in race discrimination claim under Title VII); Varner v. Ill. 

State Univ., 226 F.3d 927, 936 (7th Cir. 2000), cert. denied, 533 U.S. 902 (2001).

747. Kimel, 528 U.S. at 84.

748. Id. at 78. The prior decision was EEOC v. Wyoming, 460 U.S. 226 (1983).
Major Issues in the Federal Law of Employment Discrimination

138

dependent of the state to be denied the immunity.749 Second, even if a 

subdivision of state government is entitled to immunity, its immunity can 

be waived, either generally by legislation or by a waiver confined to a 

particular lawsuit.750 Third, even if the state retains its immunity, individual officers may still be liable, depending upon the definition of covered defendants under the statute. No such decision has been handed 

down under the ADEA, but it remains a possibility under the definition 

of an “employer” as “any agent” of an employer with twenty or more 

employees.751 The very fact that this issue arises under the ADEA, but 

not under Title VII, illustrates how far the ADEA extends the prohibition 

against discrimination beyond the grounds of race, national origin, sex, 

and religion, to which the constitutional prohibition applies.

 

749. Evans v. City of Bishop, 238 F.3d 586, 589–90 (5th Cir. 2001) (city not immune from suit); Williams v. Dallas Area Rapid Transit, 242 F.3d 315 (5th Cir. 2001) 

(regional transportation authority not immune from suit).

750. Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 618–24 

(2002) (waiver by state removing case to federal court); Katz v. Regents of the Univ. of 

Cal., 229 F.3d 831, 834–35 (9th Cir. 2000) (waiver by failing to assert defense and by 

submitting waiver by counsel for defendants). In the absence of such a waiver, the state is 

also immune from suit in state court. Alden v. Maine, 527 U.S. 706, 748 (1999).

751. 29 U.S.C. § 630(b) (2006).
139

IV. Discrimination on the Basis of Disability

Two statutes prohibit discrimination on the basis of disability: the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990 

(ADA). The ADA expanded upon the coverage of the Rehabilitation Act, 

reaching all employers with at least fifteen employees,752 while the Rehabilitation Act applies only to the federal government, federally funded 

programs, and federal contractors.753 Both acts also apply to outside employment, but again, the ADA is broader because it covers all public services and public accommodations, including those operated by private 

entities.754 Much of the case law has developed under the Rehabilitation 

Act, and most of it applies, with appropriate modifications, to the ADA. 

The ADA itself codifies the principle that its protections for persons with 

disabilities are at least as strong as those under the Rehabilitation Act755

and, in particular, that it imposes a duty of reasonable accommodation 

that is at least as strong.

756

The duty of reasonable accommodation effectively expanded the 

prohibitions against discrimination on the basis of disability from a negative obligation not to take disabilities into account into an affirmative

obligation to do so. This expansion contributed to extended litigation 

over the coverage of both statutes, resulting in several decisions restricting coverage under the ADA. In legislation similar to the Civil Rights 

Act of 1991, Congress then stepped in and superseded most, but not quite 

all, of the restrictive features of these decisions in the Americans with 

Disabilities Act Amendments Act of 2008 (ADAAA).

757 Accordingly, 

 

752. § 101(5), 42 U.S.C. § 12111(5) (2006).

753. §§ 501–504a, 29 U.S.C. §§ 791–794a (2006).

754. §§ 201–246, 301–319, 42 U.S.C. §§ 12131–12161, 12181–12189 (2006). Section 504 of the Rehabilitation Act applies, by its terms, to participation in any form—not 

just employment—in any program receiving federal financial assistance or conducted by 

a federal agency. § 504(a), 29 U.S.C. § 794(a) (2006). The Act also provides various 

special services for the disabled, such as vocational rehabilitation and federal training 

programs. Id. §§ 100–104, 300–316, 29 U.S.C. §§ 720–724, 770–777(f) (2006).

755. ADA § 501(a), 42 U.S.C. § 12201(a) (2006).

756. ADA § 102(b)(5), 42 U.S.C. § 12112(b)(5) (2006).

757. Americans with Disabilities Act Amendments Act of 2008, Pub. L. No. 110-

325, 122 Stat. 3553 (codified in 29 U.S.C.A. § 705 (2010) and 42 U.S.C.A. §§ 12101-10 

(2010)).
Major Issues in the Federal Law of Employment Discrimination

140

this section begins with a discussion of the Rehabilitation Act because it 

provides the foundation for the ADA. It then turns to questions of coverage under the ADA and how coverage has been affected by the ADAAA.

This chapter concludes with a section on discrimination on the basis of 

disability and the duty of reasonable accommodation.

Rehabilitation Act of 1973

The Rehabilitation Act has three different provisions that apply to employment: § 501 prohibits discrimination and requires affirmative action 

in favor of the disabled by federal agencies;758 § 503 requires federal 

contractors to “take affirmative action to employ and advance in employment qualified individuals with disabilities”;759 and § 504 prohibits 

exclusion of, and discrimination against, otherwise qualified handicapped individuals in federally assisted programs by federal agencies and 

by the Postal Service.760 All three sections are subject to exceptions for 

various disabilities that Congress found to be morally wrong (such as the 

use of illegal drugs),761 and §§ 503 and 504 (but not § 501) are subject to 

an exception for alcoholism and for infectious diseases that “constitute a 

direct threat to property or the safety of others” or that prevent the infected individual from performing the duties of the job.762

Sections 501 and 503 both impose an obligation on employers to 

engage in affirmative action. This obligation has seldom directly given 

rise to litigation, however. Federal employees have a cause of action for 

any violation of § 501,763 as do victims of discrimination under § 504.764

However, the employees of federal contractors have no private cause of 

action, either explicitly granted by § 503 or implied by the lower federal 

courts.765 Litigation over affirmative action has arisen only indirectly, 

 

758. § 501, 29 U.S.C.A. § 791 (2010).

759. § 503, 29 U.S.C. § 793 (2006).

760. § 504, 29 U.S.C. § 794 (2006). Section 504 prohibits employment discrimination by recipients of federal funds, whether or not the purpose of such assistance is to 

provide employment. Consol. Rail Corp. v. Darrone, 465 U.S. 624 (1984).

761. 29 U.S.C.A. §§ 705(20)(D), (E), (F) (2006).

762. Id. § 705(20)(C)(v), (D).

763. § 505(a)(1), 29 U.S.C. § 794a(a)(1) (2006).

764. § 505(a)(2), 29 U.S.C. § 794a(a)(2).

765. See, e.g., D’Amato v. Wisconsin Gas Co., 760 F.2d 1474, 1478 (7th Cir. 1985); 

see Consol. Rail Corp. v. Darrone, 465 U.S. 624, 630 n.9 (1984) (reserving this question); 

New York City Transit Auth. v. Beazer, 440 U.S. 568, 580 & n.17 (1979) (same). Section 
IV. Discrimination on the Basis of Disability

141

through claims of discrimination by federal employees brought under 

both § 501 and § 504. The lower federal courts have generally imposed 

heavier obligations upon federal employers than on private employers, 

especially to reasonably accommodate the disabled.766 Following regulations of the EEOC, the federal courts have required the federal government to be “a model employer” of the disabled.767 The theory of disparate impact is available to prove violations of § 504.768

The Rehabilitation Act only protects an “individual with a disability,” and “disability” in turn is defined by cross reference to the ADA, 

which defines it as “(A) a physical or mental impairment which substantially limits one or more of such person’s major life activities, (B) a record of such an impairment, or (C) being regarded as having such an impairment.”769 This language is incorporated in the Rehabilitation Act by 

cross-reference to the definition in the ADA, which was expanded by 

new provisions added by the ADAAA. For that reason, the definition of 

covered disabilities is taken up in the next section of this monograph discussing decisions and the provisions of the ADAAA applicable to both 

statutes.

770

Only after the plaintiff establishes the existence of a disability does 

the question whether the plaintiff is “otherwise qualified” for the job 

arise. Section 504 protects only “a qualified individual with a disability.”

771 It protects such individuals from discrimination, and by regulations it also gives them the right to reasonable accommodation of their 

disabilities.772 A fundamental problem under both the Rehabilitation Act 

and the ADA is determining where the plaintiff’s burden of proving 

qualifications leaves off and the defendant’s burden of proving reasonable accommodations begins. The regulations address this problem by 

 

503 is enforced by the Department of Labor through the Office of Federal Contract Compliance Programs. 29 U.S.C. § 793(b) (2006).

766. Gardner v. Morris, 752 F.2d 1271, 1280 (8th Cir. 1985); Hall v. United States 

Postal Serv., 857 F.2d 1073, 1080 (6th Cir. 1988); Mantolete v. Bolger, 767 F.2d 1416, 

1423 (9th Cir. 1985). 

767. 29 C.F.R. § 1614.203(d) (2010).

768. Alexander v. Choate, 469 U.S. 287 (1985).

769. 29 U.S.C.A § 705(9)(B), (20)(B) (2010), referring to ADA § 3, 42 U.S.C.A.

§ 12102 (2010). 

770. See infra text accompanying notes 828–54.

771. § 504(a), 29 U.S.C. § 794(a) (2006).

772. 29 C.F.R. § 32.13(a), (c) (2010).
Major Issues in the Federal Law of Employment Discrimination

142

assigning to the employer the burden of proving that a proposed accommodation would result in “an undue hardship on the operation of its program.”773 The regulations leave to judicial decisions, however, the interrelated questions of who is a “qualified individual,” what is a “reasonable 

accommodation,” and what amounts to an “undue hardship.” A discussion of these decisions, again raising issues common to the Rehabilitation Act and the ADA, is presented in a separate section on decisions 

under both statutes.

Several other issues concerned with the coverage and scope of the 

Rehabilitation Act have been resolved, either by the Supreme Court or by 

Congress. After decisions of the Supreme Court narrowly defined the 

scope of a federally assisted “program or activity,”774 Congress added an 

amendment broadly defining these terms to include all parts of an organization if any one part received federal assistance.775 In separate legislation, Congress also tried to supersede a Supreme Court decision preventing the recovery of damages against states and their instrumentalities.776

These amendments, although they expressly impose liability upon the 

states, may themselves exceed the power of Congress to abrogate the 

immunity of the states under the Eleventh Amendment.777 At least as the 

statute now reads, remedies are available against recipients of federal 

funds on the same terms as they are under the Civil Rights Act of 

1964,778 including the award of back pay779 and attorney’s fees.780 Damages and the right to jury trial are available for intentional violations of 

 

773. 29 C.F.R. § 32.13(a), (c) (2010).

774. United States Dep’t of Transp. v. Paralyzed Veterans, 477 U.S. 597 (1986); 

Grove City Coll. v. Bell, 465 U.S. 555, 570–74 (1984).

775. § 504(b), 29 U.S.C. § 794(b) (2006).

776. These provisions are in Title VI of the Act. 42 U.S.C. § 2000d-7(a) (2006). The 

overruled decision is Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985).

777. Some cases, however, have found a waiver of the states’ immunity under the 

Eleventh Amendment through acceptance of federal funds. Douglas v. California Dep’t 

of Youth Auth., 271 F.3d 812, 819–21 (9th Cir. 2001); Jim C. v. United States, 235 F.3d 

1079, 1081 (8th Cir. 2000), cert. denied sub nom. Arkansas Dep’t of Educ. v. Jim C., 533 

U.S. 949 (2001).

778. § 505(a)(2), 29 U.S.C. § 794a(a)(2) (2006). See infra text accompanying notes 

985-87.

779. Consol. Rail Corp. v. Darrone, 465 U.S. 624 (1984). One circuit, however, has 

denied recovery of punitive damages under § 504. Moreno v. Consol. Rail Corp., 99 F.3d 

782, 788–92 (6th Cir. 1996).

780. § 505(a)(2), 29 U.S.C. § 794a(a)(2) (2006).
IV. Discrimination on the Basis of Disability

143

§ 501 on the same terms as they are for violations of Title VII.781 Punitive damages, however, are not available in private actions against public 

entities that receive federal funds.782 Neither are damages for failure to 

make a reasonable accommodation if the employer has made a goodfaith effort to provide a reasonable accommodation in consultation with 

the disabled individual.783

Americans with Disabilities Act

Title I of the Americans with Disabilities Act (ADA) closely follows Title VII of the Civil Rights Act of 1964, expanding upon the Rehabilitation Act to cover almost all employers. Like Title VII, it covers employers with fifteen or more employees,784 including employees of state and 

local government, but not the federal government. The latter are covered 

entirely by the Rehabilitation Act.785 The ADA also contains the same 

provisions as Title VII for coverage in foreign countries, creating exceptions for compliance with the laws of other countries and for foreign corporations not controlled by a covered employer.786

The fundamental prohibition in the ADA is against discrimination on 

the basis of disability,787 in terms that follow the corresponding prohibition in Title VII.788 This prohibition is augmented by a prohibition 

against retaliation, again modeled on the corresponding prohibition in 

Title VII.789 The ADA elaborates on the provisions of Title VII in offering a definition of “discriminate,” or at least a series of activities included within the definition. The first of these activities includes various 

forms of prohibited segregation,790 in language again taken from Title 

 

781. 42 U.S.C. § 1981a(a)(2) (2006).

782. Barnes v. Gorman, 536 U.S. 181, 189–90 (2002).

783. 42 U.S.C. § 1981a(a)(3).

784. § 101(5)(A), 42 U.S.C. § 12111(5)(A) (2006).

785. An “employer” is defined as a “person,” which in turn is defined in the same 

way as it is under Title VII, to include state and local government. § 101(5)(A), (7), 42 

U.S.C. § 12111(5)(A), (7) (2006). The federal government is largely excluded from the 

definition of “employer,” leaving federal employees with their remedies under the Rehabilitation Act. § 101(5)(B), 42 U.S.C. § 12111(7) (2006). Special procedures, however, 

apply to employees of Congress. § 509, 42 U.S.C. § 12209 (2006).

786. § 102(c), 42 U.S.C. § 12112(c) (2006).

787. § 102(a), 42 U.S.C.A. § 12112(a) (2010).

788. § 703(a)(1), 42 U.S.C. § 2000e-2(a) (2006).

789. § 503, 42 U.S.C. § 12203 (2006).

790. § 102(b)(1), 42 U.S.C.A. § 12112(b)(1) (2010).
Major Issues in the Federal Law of Employment Discrimination

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VII.791 Several others are concerned with evasion of the ADA by contracting for discrimination by others or perpetuating the effects of their 

discrimination.792 These follow case law that has developed in decisions 

under Title VII on the issue of agency793 or under the theory of disparate 

impact.794 The theory of disparate impact itself is codified in terms that

were then partly incorporated into Title VII by the Civil Rights Act of 

1991.795 Another subdivision codifies the obligation to reasonably accommodate disabilities,796 which was taken from regulations under the 

Rehabilitation Act that were themselves derived from the obligation to 

reasonably accommodate religious practices under Title VII.797 A unique 

prohibition imposes detailed restrictions on medical examinations and 

inquiries, prohibiting most such examinations and inquiries before an 

offer of employment but allowing some before an applicant actually begins employment.798 These prohibitions recently have been augmented 

by the Genetic Information Nondiscrimination Act of 2008,799 which 

prohibits discrimination on the basis of genetic information and inquiries 

to obtain such information, except in narrowly defined circumstances.

The ADA is also subject to a number of special exceptions and defenses. Several of the exceptions are modeled on, or even taken from, the 

exceptions to the Rehabilitation Act for conditions that Congress found 

unworthy of coverage. These exceptions concern activities or conditions 

like the illegal use of drugs and alcohol,800 transvestitism and homosexuality,801 and compulsive gambling, kleptomania, and pyromania.802 Hav-

 

791. § 703(a)(2), 42 U.S.C. § 2000e-2(a)(2) (2006).

792. § 102(b)(2), (3), 42 U.S.C.A. § 12112(b)(2), (3) (2010). The ADA also prohibits discrimination based on the disability of a related or associated individual. § 

702(b)(4), 42 U.S.C.A. § 12112(b)(4) (2010).

793. Arizona Governing Comm. v. Norris, 463 U.S. 1073, 1086 & n.16 (1983); 

Meritor Sav. Bank v. Vinson, 477 U.S. 57, 63 (1986).

794. Griggs v. Duke Power Co., 401 U.S. 424 (1971); Albemarle Paper Co. v. 

Moody, 422 U.S. 405, 424 (1975).

795. § 102(b)(6), (7), 42 U.S.C.A. § 12112(b)(6), (7) (2010). Similar provisions 

were enacted in § 703(k) of Title VII, 42 U.S.C. § 2000e-2(k) (2006).

796. § 101(9), 42 U.S.C. § 12111(9) (2006).

797. See supra text accompanying notes 380–95.

798. § 102(d), 42 U.S.C. § 12112(d) (2006).

798. Pub. L. No. 110-233, 122 Stat. 881 (2008) (codified in 26, 29, and 42 U.S.C.A. 

(2010)).

800. §§ 104, 511, 512(b)(3), 42 U.S.C.A. §§ 12114, 12210, 12211(b)(3) (2010).

801. §§ 509, 512(a), (b)(1), 42 U.S.C.A. §§ 12208, 12211(a), (b)(1) (2010).
IV. Discrimination on the Basis of Disability

145

ing a record of certain of these disabilities, such as drug addiction and 

alcoholism, can still result in coverage under the ADA.803 Other provisions are unique to the ADA: a general defense, apparently to claims for 

disparate treatment as well as disparate impact, that a job requirement is 

“job-related and consistent with business necessity” and that it cannot be 

modified by reasonable accommodation of the disabled;804 a more specific defense that must meet the same conditions but is limited to the requirement “that an individual shall not pose a direct threat to the health 

or safety of other individuals in the workplace”;

805 an exception for infectious and communicable diseases, but again subject to the duty of reasonable accommodation;806 and an exception for insurance plans, provided that they are not used as a subterfuge to avoid the purposes of the 

law.807

Of these provisions, only the “direct threat” defense has been considered by the Supreme Court. In Chevron U.S.A. Inc. v. Echazabal,

808 the 

Court upheld an EEOC regulation that extended this defense from conditions that threaten “other individuals in the workplace” to conditions that 

threaten the employee himself or herself. The Court found no implication 

in the quoted phrase that Congress intended to prevent employers from 

protecting individuals outside the workplace or the employee himself or 

herself. The broader defense for practices that are “shown to be jobrelated and consistent with business necessity”—of which the “direct 

threat” defense is a part—easily encompasses such general safety concerns.809 The Court accordingly deferred to the EEOC regulation as a 

reasonable interpretation of the statute by an administrative agency.810

Procedures and remedies under the ADA simply follow those under Title 

 

802. § 512(b)(2), 42 U.S.C.A. § 12211(b)(2) (2010).

803. Raytheon Co. v. Hernandez, 540 U.S. 44, 53-55 (2003) (raising issue whether 

refusal to rehire based on discharge for past drug use violates ADA).

804. § 103(a), 42 U.S.C. § 12113(b) (2006).

805. § 103(b), 42 U.S.C. § 12113(b) (2006). A particular job requirement may be 

defended either on the ground that it is a business necessity or that it protects against a 

direct threat from an excluded employee. EEOC v. Exxon Corp., 203 F.3d 871, 873 (5th 

Cir. 2000).

806. § 103(e), 42 U.S.C. § 12113(e) (2006).

807. § 501(c), 42 U.S.C. § 12201(c) (2006).

808. 536 U.S. 73 (2002).

809. Id. at 78.

810. Id. at 87.
Major Issues in the Federal Law of Employment Discrimination

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VII.811 Damages and the right to jury trial are available for intentional 

violations of Title I of the ADA on the same terms as they are for violations of Title VII.812 No damages are available, however, for failure to 

make a reasonable accommodation if the employer has made a goodfaith effort to provide a reasonable accommodation in consultation with 

the disabled individual.813

Like the Rehabilitation Act, but even more pointedly, the ADA raises questions under the Eleventh Amendment about the application of its 

remedial provisions to the states. In fact, in Board of Trustees of the University of Alabama v. Garrett,

814 the Supreme Court held that money 

damages could not be recovered against a state university under the 

ADA. The Court reasoned, as it had in the corresponding decision under 

the ADEA,815 that Congress’s power to enforce the Fourteenth Amendment did not authorize it to abrogate the states’ immunity under the 

Eleventh Amendment. That is because disability, like age, is not a category subject to heightened constitutional review and so does not justify 

the exercise of congressional power to expand upon the constitutional 

prohibitions against discrimination.816 Disability is unlike race or sex in 

this respect, and the ADA, unlike Title VII, can only be enforced against 

the states in conformity with the requirements of the Eleventh Amendment.

These requirements do not, however, bar all actions against state and 

local government. As explained in the section on the ADEA,

817 the ADA 

may still be enforced against states and their subdivisions in certain circumstances. First, the ADA may be enforced against cities and other organs of local government, because these are not “arms of the state” protected by the Eleventh Amendment.818 Second, a state can waive its 

immunity to suit, either in a particular case or by general legislation.819

 

811. § 107(a), 42 U.S.C. § 12117(a) (2006).

812. 42 U.S.C. § 1981a(a)(2) (2006).

813. Id. § 1981a(a)(3).

814. 531 U.S. 356 (2001).

815. Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000).

816. Garrett, 531 U.S. at 365–68.

817. See supra text accompanying note 753.

818. Brinn v. Tidewater Transp. Dist. Comm’n, 242 F.3d 227, 234 n.4 (4th Cir. 

2001); McKenzie v. Dovala, 242 F.3d 967, 969 n.5 (10th Cir. 2001).

819. See supra note 749.
IV. Discrimination on the Basis of Disability

147

Third, individual state officers might be personally liable for injunctive 

relief or damages.820

Coverage of Disabilities

Both the Rehabilitation Act and the ADA define covered individuals in 

two basic ways: first, they must suffer from an impairment that is severe 

enough that it “substantially limits one or more of the major life activities,”821 but second, they must still be able “with or without reasonable 

accommodation” to “perform the essential functions of the employment 

position” that they seek.822 The first of these requirements is taken up in 

this section. The second, because it concerns the duty of reasonable accommodation, is taken up in the next section.

According to the terms of the statutes, the individual need not actually suffer from the impairment that is sufficient for coverage. It is enough 

if the individual has “a record of such an impairment” or is “regarded as 

having such an impairment.”823 But it is the nature of the impairment itself that has most frequently given rise to litigation. The decisions of the 

Supreme Court on this issue have been both expansive in some respects 

and restrictive in others.

In School Board v. Arline,

824 the Supreme Court held that an individual could be disabled by a contagious disease, in that case, tuberculosis. 

The Court relied both on the breadth of the statutory definition under the 

Rehabilitation Act and on regulations that broadly define the terms 

“physical or mental impairment” and “major life activities” used in the 

definition.825 Because the plaintiff had been hospitalized for tuberculosis, 

she had a record of an impairment sufficient for coverage under the statute, even though she was hospitalized several decades before she was 

discharged from her position as a public school teacher. Moreover, she 

was not excluded from coverage because tuberculosis is contagious, 

 

820. Randolph v. Rodgers, 253 F.3d 342, 347 (8th Cir. 2001) (claim for injunctive 

relief against state official under Title II of the ADA and the Rehabilitation Act); Roe v. 

Ogden, 253 F.3d 1225 (10th Cir. 2001) (claim for injunctive relief under Title II and 42 

U.S.C. § 1983).

821. 29 U.S.C.A. § 705(9)(B), 20(B) (2010); ADA § 3(1), 42 U.S.C.A. § 12102(1) 

(2010).

822. § 101(8), 42 U.S.C.A. § 12111(8) (2010).

823. 29 U.S.C.A. § 705(9)(B) (2010); ADA § 3(1), 42 U.S.C.A. § 12102(1) (2010).

824. 480 U.S. 273 (1987).

825. Id. at 278.
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since the contagiousness of the disease went only to the question, reserved by the Court, whether the plaintiff was “otherwise qualified” for 

her position as a school teacher.826 The initial question of coverage was 

different from the question whether she would ultimately prevail on her 

claim of discriminatory discharge.

Another infectious disease, but one that is more controversial, has 

also been held to be covered by the ADA. In Bragdon v. Abbott,

827 the 

plaintiff was infected with HIV, the virus that causes AIDS. She had 

been refused treatment by a dentist and brought suit under Title III of the 

ADA, which prohibits discrimination in public accommodations. Title III 

protects individuals with “disabilities,” which are defined in the same 

terms throughout the ADA. The Supreme Court held that being infected 

by the virus, even without having AIDS, interfered with the major life 

activity of reproduction, since it created a substantial risk of infecting

any child born to a woman with the virus. Presumably, the same reasoning would apply to men infected with the virus, since they would infect 

their partners, who would, in turn, infect any children born to them. 

Again, however, the contagiousness of the disease was not a reason to 

deny coverage, although it raised an issue of safety to be determined later 

in the litigation. The holding in Bragdon has been confirmed by the 

ADAAA, which now explicitly covers the “functions of the immune system” and “reproductive functions” as major life activities. 828

A more restrictive decision on covered disabilities, Sutton v. United 

Air Lines, Inc.,

829 came under intense criticism from Congress and was 

largely superseded by the ADAAA, although Congress stopped short of 

completely overruling the decision. Sutton held that mitigating measures 

had to be taken into account in determining whether an individual is disabled, so that an otherwise disabling condition would not be covered if it 

could be corrected. The plaintiffs in Sutton were twin sisters who sought 

positions as commercial airline pilots but who were denied employment 

because they had particularly poor eyesight. Somewhat paradoxically, 

the Supreme Court decided that the plaintiffs were not disabled by their 

poor eyesight, even though the defendant found them to be disqualified 

for this reason. The Court reached this conclusion because the plaintiffs 

 

826. Id. at 287.

827. 524 U.S. 624 (1998).

828. ADA § 3(1)(B), 42 U.S.C.A. § 12102(1)(B) (2010).

829. 527 U.S. 471 (1999).
IV. Discrimination on the Basis of Disability

149

had corrected their vision with eyeglasses, seemingly removing the reason that the employer rejected. Ironically enough, the Court allowed the 

employer to reject the plaintiffs because of their poor vision despite the 

fact that they had corrected it. Congress specifically disapproved of this 

reasoning in the ADAAA. 830 In two companion cases to Sutton, the 

Court also emphasized that a disability must be evaluated in its treated 

form.831 These cases are disapproved to that extent, but they also were 

affected by regulations of the Department of Transportation regulating 

eligibility to be employed as a truck driver, the position in which the 

plaintiffs were employed. 832 This feature of the decisions is not addressed by the ADAAA.

What the ADAAA did accomplish, in several very detailed provisions, was to greatly expand the coverage of the ADA: Most conditions 

must now be analyzed in their uncorrected and active state. Impairments 

are to be evaluated “without regard to the ameliorative effects of mitigating measures.” 833 This subsection then goes on to list a variety of mitigating measures, such as “medication,” “assistive technology,” “reasonable accommodations or auxiliary aids or services,” and “learned 

behavioral or adaptive neurological modifications.” In a separate subsection, the Act also provides that an impairment “that is episodic or in remission is a disability if it would substantially limit a major life activity 

when active.” 834 Hence, diseases such as cancer or epilepsy must be 

evaluated in their active state. In an abundance of caution, Congress also 

provided that the definitions of “disability” and “substantially limits” 

shall be interpreted, respectively, “in favor of broad coverage” and “con-

 

830. The uncodified statement of purpose in the Act refers to Sutton by name as one 

of the decisions that should no longer be followed. Americans with Disabilities Act 

Amendments Act of 2008 § (2)(a)(4), (b)(2), Pub. L. No. 110-325, 122 Stat. 3553 (codified in 29 U.S.C.A. § 705 (2010) and 42 U.S.C.A. §§ 12101-10 (2010)). The codified 

statement of the ADA’s purposes was also amended to eliminate the reference to the 

estimated number of people with disabilities, a provision upon which Sutton relied to 

limit the ADA’s coverage. ADA § 2(a)(1), 42 U.S.C.A. § 12101(a)(1) (2010); see Sutton, 

527 U.S. at 484-87.

831. Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 565–66 (1999); Murphy v. 

UPS, Inc., 527 U.S. 516, 524-25 (1999).

832. Albertson’s, 527 U.S. at 567–77; Murphy, 527 U.S. at 521.

833. ADA § 3(4)(E)(i), 42 U.S.C.A. § 12102(4)(E)(i) (2010).

834. ADA § 3(4)(D), 42 U.S.C. § 12102(4)(D) (2010).
Major Issues in the Federal Law of Employment Discrimination

150

sistently with the findings and purposes” of the Act, and that only one 

major life activity needs to be affected to trigger coverage. 835

Despite all these provisions expanding coverage, Congress was much 

more equivocal about the result in Sutton itself, endorsing it in some respects and rejecting it in others. Individuals with defective eyesight correctable by “ordinary eyeglasses or contact lenses” do not suffer from an 

actual “disability” as now defined in the ADA.

836 Nevertheless, they may 

still gain coverage if they are “regarded as” disabled. In the ADAAA, 

Congress disapproved of Sutton’s limited interpretation of “regarded as” 

coverage, eliminating all requirements other than a real or perceived impairment for coverage on this ground. It is no longer necessary for the 

plaintiff to suffer any effects beyond those necessary to create a real or 

perceived impairment, an issue now subject to the EEOC’s rule-making 

authority. 837 An actual or perceived limitation on a major life activity is 

no longer necessary. The plaintiff is covered simply if he or she has suffered discrimination in violation of the ADA “because of an actual or 

perceived physical or mental impairment.” 838 The only exception to “regarded as” coverage is for impairments that are both “transitory and minor.” 839 Note that an impairment must be both “transitory” and “minor” 

to be exempted from coverage. All other actual and perceived impairments—for instance, those that are permanent and minor—are sufficient 

for coverage. They do not, however, trigger all the substantive protections in the statute. The plaintiff must have suffered discrimination in 

violation of the ADA because of the actual or perceived impairment.840

Individuals who gain coverage only because they are “regarded as” disabled are not entitled to reasonable accommodation of their disabilities.

841

They can recover under the statute only if they are victims of other forms 

of discrimination.

 

835. ADA § 3(4)(A), (B), (C), 42 U.S.C.A. § 12102(4)(A), (B), (C) (2010).

836. ADA § 3(4)(E), 42 U.S.C.A. § 12102(4)(E) (2010). The term “ordinary eyeglasses or contact lenses” is itself defined in the statute, mainly to distinguish it from 

“low-vision devices” which “magnify, enhance, or otherwise augment a visual image.” 

ADA § 3(4)(E)(iii), 42 U.S.C.A. § 12102(4)(E)(iii) (2010).

837. ADA § 506, 42 U.S.C.A. § 12206 (2010).

838. ADA § 3(3)(A), 42 U.S.C.A. § 12102(3)(A) (2010).

839. ADA § 3(3)(B), 42 U.S.C.A. § 12102(3)(B) (2010).

840. ADA § 3(3)(A), 42 U.S.C.A. § 12102(3)(A) (2010).

841. ADA § 501(h), 42 U.S.C.A. § 12201(h) (2010).
IV. Discrimination on the Basis of Disability

151

One such form has to do specifically with eyeglasses. Employers are 

now required to evaluate an individual’s eyesight in its corrected state, 

unless they prove that evaluation in its uncorrected state is “job-related 

for the position in question and consistent with business necessity.”

842

Hence, individuals with bad eyesight correctable by ordinary eyeglasses 

can gain coverage under the statute if they are “regarded as” disabled and 

if the employer discriminates against them because of their eyesight in its 

uncorrected state. It is still true, however, that an employer could prevail 

on the precise facts of Sutton by making the showing now required under 

the statute.

Sutton also assumed, but did not decide, that working was a major 

life activity.843 This question has now been resolved in favor of coverage. 

The ADAAA includes working among a long list of major life activities, 

including both abstract abilities, such as “learning,” and bodily functions, 

such as “normal cell growth.” 844 The effect of the new list of major life 

activities is to expand coverage based both on an actual disability and on 

a record of having such a disability. Expanding coverage of impairments 

that constitute an actual disability automatically expands coverage based 

on “a record of such an impairment.” 845 An individual with a record of a 

condition that substantially limits any of the listed activities is now covered.

Since work is now a “major life activity,” the crucial question is 

whether the plaintiff’s impairment “substantially limits” this activity.

Sutton required the plaintiffs to prove that they were precluded from “a 

substantial class of jobs” or “a broad range of jobs.” 846 A subsequent 

decision, Toyota Manufacturing, Kentucky, Inc. v. Williams,

847 imposed 

further restrictions, holding that the impairment must be one that “prevents or severely restricts the individual from doing activities that are of 

central importance to most people’s daily lives.”848 According to Toyota 

Motor, such an impairment must also be “permanent or long term.”

849

Like Sutton, this decision was also singled out by Congress for criti-

 

842. ADA § 103(c), 42 U.S.C.A. § 12113(c) (2010).

843. Id. at 492; 29 C.F.R. § 1630.2(j) (2010).

844. ADA § 3(2), 42 U.S.C.A. § 12102(2) (2010).

845. ADA § 3(1)(B), 42 U.S.C.A. § 12102(1)(B) (2010).

846. Sutton, 527 U.S. at 492.

847. 534 U.S. 184 (2002).

848. Id. at 200–01.

849. Id. at 198.
Major Issues in the Federal Law of Employment Discrimination

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cism,850 and again like Sutton, part of it, but not all of it, was superseded 

by the ADAAA. In particular, the first of these quoted standards was disapproved, but not the second.

Although it is clear what Congress rejected in the ADAAA, it is less 

clear what it put in its place. The ADA now states that the definition of 

“disability” “shall be broadly construed in favor of coverage” and that 

the term “substantially limits” in this definition should be construed in 

light of the purposes of the ADAAA. 851 The uncodified statement of 

purposes specifically rejects “prevents or severely restricts” as the interpretation of a substantial limitation on a major life activity, but not the 

requirement that the limiting effects be “permanent or long term.” 852

Nevertheless, the requirement that a condition be evaluated in its active 

state does allow temporary impairments that are the effect of continuing 

conditions to be sufficient for coverage. 853

The ADAAA also undercuts the decision in Toyota Motor in another 

way. The plaintiff in Toyota Motor suffered from carpal tunnel syndrome 

and alleged that it interfered with her ability to perform “manual tasks.” 

The Supreme Court held that “manual tasks” were a major life activity

only to the extent that they involved “activities that are of central imporance to most people’s daily lives.” 854 Under the ADAAA, “performing manual tasks” is now on the list of major life activities, without any 

further need to analyze its relationship to other activities.

855 A substantial 

limit on “performing manual tasks” alone appears to be sufficient. Under 

the ADAAA, the plaintiff could also have argued that she was “regarded 

as” disabled, but if she had obtained coverage solely on this ground, she 

could not have asserted a right to reasonable accommodation.

 

850. Americans with Disabilities Act Amendments Act of 2008 § (2)(a)(5), (b)(4), 

(5) Pub. L. No. 110-325, 122 Stat. 3553.

851. ADA § 3(4), 42 U.S.C.A. § 12102(4) (2010).

852. Americans with Disabilities Act Amendments Act of 2008 § (2)(a)(5), (b)(4), 

(5), Pub. L. No. 110-325, 122 Stat. 3553. A proposal to substitute new language for the 

statutory phrase “substantially restricts” was defeated in the Senate in the course of considering the ADAAA. 154 Cong. Rec. S8345-46 (daily ed. Sept. 11, 2008) (remarks of 

Sen. Harkin).

853. ADA § 3(4)(D), 42 U.S.C.A. § 12102(4)(D) (2010).

854.Toyota Motor, 534 U.S. at 197.

855. ADA § (3)(2)(A), 42 U.S.C.A. § 12102(2)(A) (2010).
IV. Discrimination on the Basis of Disability

153

Discrimination and Reasonable Accommodation

The ADAAA has now resolved most questions of whether an individual 

has a covered disability. For most plaintiffs, the focus of litigation is now 

likely to shift to the question whether the plaintiff is a “qualified individual” under Title I of the ADA and to the question whether the defendant 

has violated the prohibitions against employment discrimination in this 

title. These are questions under Title I concerning the scope of the defendant’s duties and the range of legitimate reasons that can be offered 

for a disputed employment decision. A fundamental problem in addressing these issues is determining where the plaintiff’s burden of proof 

leaves off and the defendant’s burden of proof begins. The plaintiff has 

the initial burden of proving that he or she is a “qualified individual” and 

of proving discrimination, subject to any defenses on which the defendant has the burden of proof. The most important such defense, both in 

regulations under the Rehabilitation Act and under the explicit terms of 

the ADA, is that a proposed accommodation would result in an “undue 

hardship.”856

Both statutes, however, leave to judicial decisions the task of disentangling these interrelated issues so that both the plaintiff and the defendant have clearly defined burdens of proof. Section 504 of the Rehabilitation Act protects only “a qualified handicapped individual” from 

discrimination. Regulations give such an individual a right to reasonable 

accommodation, implicitly making the question whether the person is 

“qualified” depend upon whether a reasonable accommodation is available for him or her.857 So, too, under the ADA, the general duty not to discriminate applies only to “a qualified individual with a disability.” This 

phrase, in turn, is defined 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.”858 This 

section of the statute goes on to make the employer’s judgment relevant 

to, but not dispositive of, what constitutes the essential functions of the 

job. The employer can also invoke “undue hardship” as a defense to a 

 

856. 29 C.F.R. § 32.13(a) (2010); § 102(b)(5)(A), 42 U.S.C. § 12112(b)(5)(A) 

(2006).

857. 29 C.F.R. § 32.13(a), (c) (2010). For federal agencies, the regulation is 29 

C.F.R. § 1613.704(a) (2010).

858. § 101(8), 42 U.S.C.A. § 12111(8) (2010).
Major Issues in the Federal Law of Employment Discrimination

154

claim of reasonable accommodation.859 The individual’s disability, the 

essential functions of the job, the accommodations available, and the 

hardship to the employer all are closely related. Under both statutes, all 

of these elements define both the coverage of protected individuals and 

the obligations of employers.

The Supreme Court first addressed this problem in a decision under 

the Rehabilitation Act, Southeastern Community College v. Davis.

860

That case involved admission to a clinical training program for registered 

nurses operated by a community college that received federal funds. Although the case did not concern employment, it raised closely analogous 

issues. The plaintiff had a severe hearing impairment and was denied 

admission to the program for that reason. The Court held that the community college was not required to make “substantial” or “fundamental” 

changes in its educational program to accommodate the plaintiff.861

The Court reached this conclusion by narrowly interpreting the “otherwise qualified handicapped individuals” who are covered by the statute. The Court interpreted this phrase to refer only to those who meet all 

of the nondiscriminatory qualifications for a job despite their disabilities, 

not those who meet the nondiscriminatory qualifications not affected by

their disabilities. The limitations imposed by their disabilities need not be 

ignored but can be taken into account in determining eligibility for the 

program in question.862

These questions are particularly acute for individuals who obtain 

coverage under the ADA only because they are “regarded as” having a 

disability. As noted in the previous section, the employer does not owe 

such individuals any duty of reasonable accommodation. 863 Hence, for 

these individuals, the question of whether they are qualified “without

regard to” their disabilities or “in spite of” their disabilities remains crucial. In terms of the employer’s available defenses, it depends upon 

whether the employer must ignore the plaintiff’s perceived disability or 

whether the employer can take account of its effect on performance.

Thus, an employee who has an impairment, but not one so severe as to 

 

859. ADA §§ 101(10), 102(b)(5)(A), 42 U.S.C. §§ 12111(10), 12112(b)(5)(A) 

(2006).

860. 442 U.S. 397 (1979).

861. Id. at 410–11.

862. Id. at 405–06.

863. ADA § 501(h), 42 U.S.C.A. § 12201(h) (2010).
IV. Discrimination on the Basis of Disability

155

constitute an actual disability, would have a covered disability if “regarded as” disabled by the employer. Would the employer violate the 

ADA if it took account of the impairment or its consequences for performance on the job? Under the “without regard to” approach, the employer would have to disregard the impairment, even if it affected likely 

performance on the job. Assuming he or she could perform the essential 

functions of the job, the employee would be a “qualified individual” entitled to protection against employment discrimination,864 and taking account of her impairment would then constitute “discrimination on the 

basis of disability.” 865 Alternatively, the employer could be allowed to 

take account of likely performance “in spite of” the disability. On this 

view, performance on the job would not be an impairment that constituted a disability, so that the employer would not be engaged in “discrimination on the basis of disability” in taking account of the impairment. 

In the legislative history to the ADAAA, Congress addressed these 

questions, supporting the application of the standards from Texas Department of Community Affairs v. Burdine.

866 In particular, the House 

Committee on Education and Labor stated in its report that, in originally 

passing the ADA, “Congress intended and believed that the fact that an 

individual was discriminated against because of a perceived or actual 

impairment would be sufficient: if a person is disqualified on the basis of 

an actual or perceived physical or mental condition, and the employer 

can articulate no legitimate job-related reason for the rejection, a perceived concern about employment of persons with disabilities could be 

inferred and the plaintiff would qualify for coverage under the ‘regarded 

as’ test.” 867 The committee then goes on to endorse the application of 

Burdine to claims involving indirect evidence of discrimination, reasoning that it goes to the issue whether the plaintiff is a “qualified individual.” 868

For individuals with an actual disability or a record of one, the employer’s duty of reasonable accommodation raises added issues. In 

Southeastern Community College v. Davis, the Court held that § 504 of 

 

864. ADA § 101(8), 42 U.S.C.A. § 12111(8), (2010).

865. ADA § 102(a), 42 U.S.C.A. § 12112(a) (2010).

866. 450 U.S. 782 (1989).

867. H.R. Rep. 110–730, Pt. 1, 110th Cong., 2d Sess. 13 (2008), quoting H.R. Rep. 

No. 101–485, pt. 3, at 30-31 (1990).

868. Id. at 16–17.
Major Issues in the Federal Law of Employment Discrimination

156

the Rehabilitation Act did not impose on recipients of federal funds a 

broad duty of accommodation analogous to the duty to engage in affirmative action imposed upon federal agencies under § 501 or federal contractors under § 503.869 Consistent with this reasoning, the lower federal 

courts have imposed a heavier duty of accommodation upon federal 

agencies than upon private employers, following the regulation, quoted 

earlier, that “the Federal Government shall become a model employer of 

handicapped individuals.”870 With this qualification, most of the decisions on the duty to accommodate under the Rehabilitation Act support 

at least as strong a duty under the ADA, which specifically provides that 

the duties it imposes can only be broader, not narrower, than those under

the Rehabilitation Act.871

A Supreme Court decision under Title III of the ADA, concerned 

with discrimination in public accommodations, illustrates both the 

broader coverage of the ADA and the tendency to expand the duties of 

covered defendants. Public accommodations, as defined in Title III of the 

ADA, are those provided by private entities, such as hotels and restaurants. PGA Tour Inc. v. Martin872 concerned professional golf tournaments that were open to all qualifying golfers and for this reason were 

held to be a public accommodation.873 The more widely noted holding 

was that allowing the plaintiff to use a golf cart because of a medical 

condition in one of his legs did not “fundamentally alter the nature” of 

the tournament.874 In reasoning that could easily be applied to the issue 

of “essential functions” under Title I, the Court stated, “the essence of 

the game has been shot-making.”875 Accordingly, allowing the plaintiff 

to use a golf cart was a reasonable accommodation of his disability.

The regulations under the Rehabilitation Act offer a list of accommodations that might be tried and factors that might be taken into account.876 The statutory language of the ADA follows the same pattern, 

defining the duty of reasonable accommodation by offering a list of ex-

 

869. Id. at 407–12.

870. 29 C.F.R. § 1613.203(b) (2010).

871. § 501(a), 42 U.S.C. § 12201(a) (2006).

872. 532 U.S. 661 (2001).

873. Id. at 677.

874. Id. at 689–90.

875. Id. at 683.

876. 29 C.F.R. §§ 32.13(b), (c), 1613.203(c) (2010).
IV. Discrimination on the Basis of Disability

157

amples, which nevertheless are not meant to be exhaustive: making facilities accessible to the disabled, restructuring jobs, modifying equipment 

and tests, providing readers and interpreters, and “other similar accommodations for individuals with disabilities.”877

The definition of “undue hardship” in the ADA, like the definition of 

“reasonable accommodation,” follows regulations issued under the Rehabilitation Act.878 “Undue hardship” under the ADA “means an action 

requiring significant difficulty or expense, when considered in light of” 

four enumerated factors.879 These factors are framed very broadly as the 

nature and cost of the accommodation, the nature and financial resources 

of the facility, the nature and financial resources of the employer, and the 

type of the employer’s operations.880 The legislative history makes it 

clear that Congress intended to impose no definite rules about what constitutes undue hardship, such as a certain percentage of the pay for the 

position in question.881

The literal terms of the ADA created a problem in assigning the burden of proof. The ADA requires the plaintiff to prove that an accommodation is reasonable, while it requires the defendant to prove that it causes an undue hardship. The statute, however, does not clearly distinguish

between these issues, leaving for the courts the question when a reasonable accommodation could nevertheless cause an undue hardship. The 

statutory definitions of both “reasonable accommodation” and “undue 

hardship” depend upon lists of examples and factors to be taken into account, without precisely identifying what makes an accommodation “reasonable” or what makes hardship “undue.”882

The Supreme Court attempted to give these provisions more definite 

content in U.S. Airways, Inc. v. Barnett,

883 a case involving an employee’s request for accommodation of his bad back by transfer to a less 

strenuous position, one that was not otherwise open to him under the 

terms of the employer’s seniority system. When the employer failed to 

 

877. § 101(9)(B), 42 U.S.C. § 12111(9)(B) (2006).

878. 34 C.F.R. § 104.12(c); 45 C.F.R. § 84.12(c) (2010).

879. § 101(10)(A), 42 U.S.C. § 12111(10)(A) (2006).

880. § 101(10)(B), 42 U.S.C. § 12111(10)(B) (2006).

881. 136 Cong. Rec. H2470, H2475 (daily ed. May 17, 1990) (rejecting amendment 

that would have established presumption of undue hardship at 10% of annual salary); 

H.R. Rep. No. 101-485, pt. 3, at 41 (1990) (rejecting per se rule of undue hardship).

882. § 101(8), (9), 42 U.S.C.A. § 12111(9), (10) (2010).

883. 535 U.S. 391 (2002).
Major Issues in the Federal Law of Employment Discrimination

158

make an exception to the seniority system for his benefit, he sued. As the 

case came to the Supreme Court, it raised two questions: whether creating an exception to the employer’s seniority system was required by the 

duty of reasonable accommodation and who had the burden of proof on 

this issue. On the first question the Court held that such an accommodation is sometimes required, but on the second, it held that most of the 

burden of proof remained on the plaintiff. The Court reasoned that the 

ADA does not “ordinarily” require assignment of a disabled employee 

contrary to the terms of a seniority system, and in the absence of other 

evidence, a showing to this effect entitles the employer to summary 

judgment.884 Nevertheless, the plaintiff remains free to submit evidence 

that his or her case is an exception, for instance, because the employer 

frequently makes other, unilateral changes in the seniority system.885

Before U.S. Airways, the federal circuits had taken a variety of different approaches to the burden of proof. Most of these variations involved slight differences in formulating what each party had to prove. 

Some, however, were more consequential. Two leading cases, one cited 

favorably by the Court, and the other passed over without citation, exemplify the different approaches. The first, Borkowski v. Valley Central 

School District,

886 was decided under the Rehabilitation Act, and the second, Vande Zande v. Wisconsin Department of Administration,

887 was 

decided under the ADA. Both cases, however, addressed the same issue: 

how to divide the burden of proof between the plaintiff and the defendant 

on the duty of reasonable accommodation and the defense of undue hardship. Both decisions place upon the plaintiff the burden of proposing 

some form of reasonable accommodation, and both impose upon the defendant the burden of proving that a particular accommodation is too 

costly to be implemented. The difference between the two decisions lies 

in how much the plaintiff must prove in order to establish that a proposed 

accommodation is “reasonable.”

In Borkowski, the Second Circuit resolved the overlap between the 

open-ended definitions of “reasonable accommodation” and “undue 

hardship” in favor of the plaintiff, requiring her to make only a minimal 

showing that her proposed accommodation was cost-effective. The court 

 

884. Id. at 406.

885. Id.

886. 63 F.3d 131 (2d Cir. 1995).

887. 44 F.3d 538 (7th Cir. 1995).
IV. Discrimination on the Basis of Disability

159

imposed on the plaintiff only the burden of producing evidence—not the 

burden of persuasion—that the costs of a proposed accommodation “are 

not clearly disproportionate to the benefits that it will produce.”888 The 

remainder of the burden of production, and the entire burden of persuasion, falls on the defendant in establishing cost as an “undue hardship.” 

Accordingly, the court concluded that the plaintiff had presented sufficient evidence to survive a motion for summary judgment.

By contrast, in Vande Zande, the Seventh Circuit imposed a heavier 

burden on the plaintiff to show that a proposed accommodation was 

“reasonable in the sense both of efficacious and of proportional to 

costs.”889 On the record presented in Vande Zande, the plaintiff had not 

made this showing, and summary judgment was therefore properly entered against her. The accommodations that she proposed were too costly 

in comparison with the benefits that they conferred on both her and her 

employer in making her better able to perform her job.

Although the difference between these two decisions may be subtle, 

it is nevertheless significant, particularly in close cases resolved on 

summary judgment. Borkowski gives the plaintiff a greater chance of 

going to trial, or what amounts to the same thing—of obtaining a favorable settlement and more extensive accommodations. Vande Zande makes 

it more difficult for the plaintiff to get past summary judgment and so 

obtain the relief that he or she seeks, either by judicial decision or by settlement.

The burden of proof was addressed in U.S. Airways, but in a manner 

that blurred the distinctions among the different approaches taken by the 

courts of appeals. Citing Borkowski, the Supreme Court assigned the 

burden of proof in a manner similar to the assignment in Vande Zande. 

The Court stated that the plaintiff, in order to defeat a motion for summary judgment, “need only show that an ‘accommodation’ seems reasonable on its face”;890 the defendant “then must show special (typically 

case-specific) circumstances that demonstrate undue hardship.”891 Although such general statements are helpful in outlining the burden of 

proof imposed upon each party, they do not resolve the differences 

among the lower federal courts in their attitude toward summary judg-

 

888. Borkowski, 63 F.3d at 138.

889. Vande Zande, 44 F.3d at 543.

890. U.S. Airways, 535 U.S. at 401 (citing cases).

891. Id. at 402.
Major Issues in the Federal Law of Employment Discrimination

160

ment. As Borkowski and Vande Zande illustrate, some circuits are more 

inclined than others to grant summary judgment to the defendant on the 

related issues of reasonable accommodation and undue hardship.

The Supreme Court also addressed burdens of proof and the standards for summary judgment in another case concerned with the narrow 

issue of the plaintiff’s prior representation that she was “totally disabled” 

in seeking disability benefits. In Cleveland v. Policy Management Systems Corp.,

892 the Court held that an application for benefits under the 

Social Security Disability Insurance (SSDI) program did not necessarily 

preclude an individual from establishing coverage under the ADA. Under 

the SSDI program, covered disabilities are determined by applying a set 

of presumptions that have no counterpart under the ADA. Moreover, the 

ultimate award of benefits depends upon the existence of a disability 

alone, without consideration of the possibility of reasonable accommodation. Because of the difference between the issues under the ADA and 

the issues under the SSDI program, the plaintiff could survive a motion 

for summary judgment by the employer based solely on her representation of total disability in her application for SSDI benefits. Nevertheless, 

the burden of proof remained upon the plaintiff to establish that she was 

“otherwise qualified” for the position that she sought from the employer.

This difference has now been confirmed by the ADAAA, which provides 

that nothing in the ADA “alters the standards for determining eligibility 

for benefits under State worker’s compensation laws or under State and 

Federal disability benefit programs.”893

The preceding decisions all involve the substance of the employer’s 

duty of reasonable accommodation, but this duty has a procedural dimension as well. The ADA encourages employers to confer with an employee over proposed accommodations by relieving them of liability for 

damages if they have made a good-faith effort to provide a reasonable 

accommodation in consultation with their employees.894 The scope of the 

duty to engage in this interactive process remains somewhat uncertain. 

Some circuits impose a virtually unconditional duty upon employers to 

consult with an employee after receiving a request for accommodation;895

 

892. 526 U.S. 795 (1999).

892. § 501(e), 42 U.S.C.A. § 12201(e) (2010).

894. 42 U.S.C. § 1981a(a)(3) (2006).

895. Bultemeyer v. Fort Wayne Cmty. Sch., 100 F.3d 1281, 1286 (7th Cir. 1996); 

Taylor v. Principal Fin. Group, 93 F.3d 155, 162 (5th Cir. 1996).
IV. Discrimination on the Basis of Disability

161

others impose a duty upon employers only to respond to reasonable proposals.896 Of course, as a practical matter, employers are well advised to 

consider any proposed accommodation to reduce the risk of litigation, or 

if litigation occurs, to build a record of reasonable responses to employee 

requests. Resolving claims of discrimination in this way holds out the 

promise that employers will adjust to the needs of the disabled without 

the massive litigation that opened up employment opportunities to members of minority groups and women.

 

896. Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1111–14 (9th Cir. 2000) (en banc), 

cert. granted, 532 U.S. 970 (2001), vacated and remanded on other grounds, 535 U.S. 

391 (2002); Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir. 1997); White v. York 

Int’l Corp., 45 F.3d 357, 363 (10th Cir. 1995).

163

V. Other Prohibitions Against 

Employment Discrimination

Reconstruction Civil Rights Acts

In the aftermath of the Civil War, Congress passed several civil rights 

acts at the same time as it considered and sent to the states the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution. The 

civil rights acts were important components of Reconstruction and 

served to establish the rights of the newly freed slaves in the former 

states of the Confederacy. These acts were not vigorously enforced, 

however, when Reconstruction came to an end, and they were revived 

only by the Supreme Court almost a century later. Three of these statutes 

figure in the law of employment discrimination today: § 1981, which 

grants to all persons the same right “to make and enforce contracts . . . as 

is enjoyed by white citizens”;897 § 1983, which creates a private right of 

action for deprivations of federal rights under color of state law;898 and 

§ 1985(3), which prohibits conspiracies to deny equal protection of the 

laws.899

An entire treatise could be devoted to these laws, and particularly to 

§ 1983,900 which has developed as the principal vehicle for general civil 

rights claims under federal law. The procedures for enforcing these statutes differ significantly from those under Title VII, tending to be much 

simpler, but the substantive law and remedies are largely the same. The 

following discussion emphasizes the differences between these statutes 

and Title VII.

Section 1981

The principal Reconstruction statute that provides a remedy for employment discrimination is § 1981, which prohibits all forms of racial discrimination, whether public or private, in making contracts. The exact 

scope of § 1981 has been a matter of controversy, only recently resolved 

by the Civil Rights Act of 1991. For many years, § 1981 was thought to 

 

897. 42 U.S.C. § 1981 (2006).

898. Id. § 1983 (2006).

899. Id. § 1985(3).

900. See infra text accompanying notes 930–42.
Major Issues in the Federal Law of Employment Discrimination

164

prohibit only state action in denying the right to contract, until the Supreme Court reached a contrary conclusion in interpreting a companion 

statute, § 1982, which prohibits discrimination with respect to property 

rights. The Court interpreted § 1982 to reach private discrimination in 

real estate transactions,901 and this precedent was soon extended to §

1981. In Johnson v. Railway Express Agency,

902 the Supreme Court 

broadly interpreted § 1981 to provide a remedy for employment discrimination that is procedurally independent of Title VII. The Court later expanded § 1981 still further, to reach discrimination on the basis of national origin, in addition to discrimination on the basis of race.903

Despite these expansive decisions, the Court has limited § 1981 to 

claims of disparate treatment, excluding claims of disparate impact,904

and other federal courts have generally held that § 1981 imposes no 

greater burden on employers than does Title VII.905 The statute also supports litigation only by a party or a would-be party to a contract, thus 

excluding the sole shareholder and president of a corporation from bringing a claim for racial discrimination in breaching a contract with the corporation.906 Section 1981 does support claims of retaliation,907 but the 

lower federal courts are divided on whether it covers discrimination 

against aliens.908

 

901. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 437–39 (1968).

902. 421 U.S. 454 (1975).

903. Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604 (1987).

904. General Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375 (1982). Section 1981 also supports claims of reverse discrimination. McDonald v. Santa Fe Trail 

Transp. Co., 427 U.S. 273, 285–96 (1976).

905. E.g., Johnson v. Ryder Truck Lines, 575 F.2d 471 (4th Cir. 1978), cert. denied, 

440 U.S. 979 (1979) (seniority system permitted by Title VII not prohibited by § 1981).

906. Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470 (2006).

907. CBOCS v. Humphries, 128 S. Ct. 1951 (2008).

908. Compare Bhandari v. First Nat’l Bank of Commerce, 887 F.2d 609 (5th Cir. 

1989), cert. denied, 494 U.S. 1061 (1990) (alienage discrimination not covered independently of racial discrimination), with Anderson v. Conboy, 156 F.3d 167, 175 (2d Cir. 

1998) (alienage discrimination covered independently). The Supreme Court granted certiorari to resolve this question but did not reach it. Duane v. GEICO, 37 F.3d 1036 (4th 

Cir. 1994) (private discrimination against aliens covered), cert. voluntarily dismissed, 515 

U.S. 1101 (1995). Early decisions of the Supreme Court, before § 1981 was extended to 

cover private discrimination, applied it to government discrimination against aliens. 

Takahashi v. Fish & Game Comm’n, 334 U.S. 410 (1948).
V. Other Prohibitions Against Discrimination

165

Another restrictive decision by the Supreme Court, in Patterson v. 

McLean Credit Union,

909 eventually led Congress to amend § 1981 in the 

Civil Rights Act of 1991. Relying on the literal terms of § 1981 as it then 

read, the Court in Patterson held that § 1981 covered only discrimination 

in the formation of contracts, not in their performance, as in the claim of 

racial harassment in Patterson itself.910 This decision is probably better 

explained as expressing long-standing doubts about the extension of 

§ 1981 to private discrimination.911 In any event, Congress put all these 

doubts to rest by adding a provision explicitly extending § 1981 to private discrimination912 and another provision overruling Patterson and 

extending § 1981 to all aspects of the contractual relationship.913 After 

some initial decisions holding that § 1981 did not apply to contracts of 

employment-at-will, the courts of appeals have now uniformly applied 

the statute to all contracts of employment.914

Although Congress clearly meant to overrule Patterson in the Civil 

Rights Act of 1991, it is less clear that it meant to affect another Supreme 

Court decision, Jett v. Dallas Independent School District,

915 which held 

that claims under § 1981 against state officials must be brought under 

§ 1983. The Court in Jett reasoned that § 1981 only created a right, 

whereas § 1983 explicitly provided a remedy for actions of state officials, and so the latter governed the method of enforcing the right.916 The 

new provisions in § 1981 do nothing to disturb this reasoning, although 

the general expansion of § 1981 might be thought to override the limitations under § 1983, particularly various immunities.917 The circuits are 

 

909. 491 U.S. 164 (1989).

910. Id. at 175–78.

911. See Gerhard Casper, Jones v. Mayer: Clio, Bemused and Confused Muse, 1968 

Sup. Ct. Rev. 89.

912. 42 U.S.C. § 1981(c) (2006).

913. Id. § 1981(b). Because these provisions are substantive, they do not apply to 

cases that arose before the Civil Rights Act of 1991 took effect on November 21, 1991. 

Rivers v. Roadway Express, Inc., 511 U.S. 298, 312–13 (1994).

914. Skinner v. Maritz, Inc., 253 F.3d 337, 342 (8th Cir. 2001) (citing cases).

915. 491 U.S. 701 (1989).

916. Id. at 731–36.

917. See infra text accompanying notes 936–39.
Major Issues in the Federal Law of Employment Discrimination

166

divided on this question, as they are on others about the effect of the Civil Rights Act of 1991.918

Unlike Title VII, § 1981 does not require exhaustion of administrative remedies,919 but like Title VII after the 1991 amendments, it provides damages as a remedy920 and gives rise to a right to jury trial under 

the Seventh Amendment.921 Some, but not all, claims under § 1981 are 

governed by the general federal statute of limitations for all claims arising under federal statutes enacted after 1990. This statute of limitations 

requires all such claims to be brought within four years, unless “otherwise provided by law.”922 In Jones v. R.R. Donnelley & Sons Co.,

923 the 

Supreme Court applied this general statute of limitations to claims under 

§ 1981 that were “made possible” by the Civil Rights Act of 1991. This 

case involved claims for a hostile work environment, wrongful termination, and failure to transfer. Other claims under § 1981, however, predated the Civil Rights Act of 1991 and, apparently, continue to be governed 

by the previously applicable statute of limitations. These claims mainly 

involve discrimination in hiring924 and are governed by the statute of limitations for tort claims for personal injuries, adopted from the state in 

which the district court sits.925 Regardless of which statute of limitations 

applies—the state statute or the general federal statute—it applies to a 

claim under § 1981 independently of any administrative proceedings 

commenced by the plaintiff under Title VII.926 The limitation period be-

 

918. Compare Fed’n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 

1209, 1214 (9th Cir. 1996) (§ 1981(c) allows claims directly against state actors under 

doctrine of respondeat superior), with Butts v. Volusia Cnty., 222 F.3d 891, 894 (11th 

Cir. 2000) (no such direct action against state actor allowed).

919. See Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 460–61 (1975).

920. Id. at 460.

921. E.g., Setser v. Novack Inv. Co., 638 F.2d 1137, 1139–40 (8th Cir.), modified on 

other grounds, 657 F.2d 962 (8th Cir.) (en banc), cert. denied, 454 U.S. 1064 (1981); 

Moore v. Sun Oil Co., 636 F.2d 154, 156 (6th Cir. 1980); cf. Curtis v. Loether, 415 U.S. 

189, 195–96 (1974) (action for damages under Fair Housing Act gives rise to Seventh 

Amendment right to jury trial in federal court).

922. 28 U.S.C. § 1658 (2006).

923. 541 U.S. 369 (2004).

924. See supra text accompanying notes 896-98.

925. Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) (rejecting longer limitation 

period for contract claims under state law); Burnett v. Grattan, 468 U.S. 42 (1984) (rejecting shorter limitation period for filing administrative complaints under state law).

926. Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 462–65 (1975).
V. Other Prohibitions Against Discrimination

167

gins to run on claims under § 1981 at the same time as the limitation period on any claims under Title VII,927 but the time periods under each 

statute are different and are computed independently of one another.928

The net effect of these similarities and differences is to encourage plaintiffs and their lawyers to take advantage of both statutes if they can.

Section 1988 provides for the award of attorney’s fees to prevailing 

parties on claims covered by any of the Reconstruction civil rights acts, 

under substantially the same terms as those under Title VII.929 Both Title 

VII claims and § 1981 claims, but not other claims, support an award of 

expert fees.930

Section 1983

The modern law of § 1983 begins with Monroe v. Pape,

931 in which the 

Supreme Court interpreted the statute to provide a remedy for all deprivations of constitutional rights under color of state law, even if state law 

itself provided a remedy. This holding made § 1983 the vehicle for enforcing all constitutional rights against the state, including those based on 

the constitutional prohibitions against discrimination. Before the enactment of Title VII and its amendment to cover states and localities as employers, § 1983 already provided a remedy for employment discrimination by state and local officials. Moreover, with the subsequent 

recognition of a constitutional prohibition against sex discrimination, 

§ 1983 covered all the same grounds of discrimination as Title VII: race, 

national origin, sex, and religion.

The content of these constitutional prohibitions differs significantly 

from Title VII. The constitutional prohibitions extend only to intentional 

 

927. Chardon v. Fernandez, 454 U.S. 6 (1981).

928. A further refinement of these issues concerns the recovery of back pay and 

damages based on the theory of “continuing violations”: violations that extend from an 

earlier period into the limitation period but could not, by themselves, be the subject of a 

timely claim. See supra text accompanying notes 463–83. Some circuits have refused to 

allow recovery for such violations under § 1981, even if back pay could be recovered 

under Title VII. E.g., Thomas v. Denny’s, Inc., 111 F.3d 1506, 1513 (11th Cir.), cert. 

denied, 522 U.S. 1028 (1997).

929. 42 U.S.C. § 1988 (2006). See supra text accompanying notes 604–20.

930. 42 U.S.C. § 1988 (2006); § 706(k), 42 U.S.C. §§ 2000e-5(k), 1988(c) (2006).

931. 365 U.S. 167 (1961). See generally Martin A. Schwartz & Kathryn R. Urbonya, 

Section 1983 Litigation (Federal Judicial Center 2d ed. 2008).
Major Issues in the Federal Law of Employment Discrimination

168

discrimination, not to practices with disparate impact.932 Evidence of disparate impact may be used to prove intentional discrimination, as it may 

under Title VII, but an additional inference about the intent of government officials must be drawn to reach this conclusion. Disparate impact 

alone does not constitute a violation of the Constitution. The constitutional prohibitions against sex discrimination also differ from those under Title VII. While Title VII prohibits any classification on the basis of 

sex, subject only to a narrow exception for bona fide occupational qualifications,933 the Constitution takes a more flexible approach, prohibiting 

classifications on the basis of sex unless they have an “exceedingly persuasive justification.”934 The nuances of the statutory and constitutional 

prohibitions against discrimination on other grounds, such as religion, 

might also yield different results in particular cases. 

In the opposite direction, the Constitution is also broader in some 

respects than Title VII. Through the Fourteenth Amendment it prohibits 

discrimination by the states on the basis of alienage, except in positions 

bound up with the operation of the states as government entities, such as 

police officers or teachers.935 The Fifth Amendment imposes no corresponding prohibition upon the federal government, at least as to exclusion of aliens from federal employment by act of Congress or order of 

the President.936

In addition to satisfying the substantive requirements of the constitutional prohibitions against discrimination, plaintiffs under § 1983 must 

overcome several further obstacles in order to obtain relief, particularly 

in the form of damages. If the defendant is a separate unit of government

(like a city or county), it is not considered part of the state immune from 

monetary relief under the Eleventh Amendment,937 but liability depends 

on whether the alleged discrimination resulted from the execution of of-

 

932. Washington v. Davis, 426 U.S. 229, 238–39 (1976).

933. Int’l Union v. Johnson Controls, Inc., 499 U.S. 187, 200–01 (1991).

934. United States v. Virginia, 518 U.S. 515, 531 (1996).

935. Ambach v. Norwick, 441 U.S. 68 (1979); Folie v. Connelie, 435 U.S. 291 

(1978). By contrast, it prohibits discrimination in essentially clerical positions, such as 

notary public. Bernal v. Fainter, 467 U.S. 216 (1984).

936. Hampton v. Mow Sun Wong, 426 U.S. 88 (1976); Mathews v. Diaz, 426 U.S. 

67 (1976).

937. Quern v. Jordan, 440 U.S. 332, 338 (1979).
V. Other Prohibitions Against Discrimination

169

ficial policy or custom.938 An individual state or local officer can be sued 

in an official capacity only for the award of attorney’s fees. The officer 

must be sued in a personal capacity for the remaining forms of relief, 

both damages and injunctive or declaratory relief.939 To obtain relief 

against the officer in a personal capacity, the plaintiff must also overcome a defense of official immunity, either absolute or qualified.940

The statute of limitations for § 1983 is borrowed from state law. In 

Wilson v. Garcia,

941 the Supreme Court held that all claims under § 1983 

should be subject to the state statute of limitations for claims for personal 

injury. The Court recognized the wide range of claims that may be 

brought under § 1983 but reasoned that uniform and definite limitation in 

each state was preferable to varying and uncertain limitations for different claims.942 With the exceptions noted earlier, attorney’s fees can be 

recovered in § 1983 actions in the same circumstances as under Title 

VII.943

Section 1985(3)

Section 1985(3) prohibits employment discrimination in a narrow range 

of cases in which persons have conspired to deny equal protection or 

equal privileges and immunities under the law and have caused an injury 

to any person or property or a deprivation of any federal right or privilege.944 Like the other Reconstruction civil rights statutes, § 1985(3) suffered a century of neglect before it was revived by the Supreme Court. In 

Griffin v. Breckenridge,

945 the Court interpreted § 1985(3) to reach purely private conspiracies involving “class-based, invidiously discriminatory 

animus.” This last phrase closely follows the constitutional prohibition 

against government reliance upon “suspect classifications,” and the 

scope of this statute has accordingly been limited to discrimination 

 

938. City of St. Louis v. Prapotnik, 485 U.S. 112, 128 (1988); Owens v. City of 

Independence, 445 U.S. 622, 657 (1980).

939. See, e.g., Hafer v. Melo, 502 U.S. 21 (1991).

940. See, e.g., Scheuer v. Rhodes, 416 U.S. 232 (1974).

941. 471 U.S. 261 (1985).

942. Id. at 271–75.

943. See supra text accompanying notes 604–20.

944. 42 U.S.C. § 1985(3) (2006).

945. 403 U.S. 88, 102 (1971).
Major Issues in the Federal Law of Employment Discrimination

170

against groups defined in those terms. Thus, nonunion workers are not 

among the groups protected by the statute.946

A further limitation on § 1985(3) also follows from the element of 

“class-based, invidiously discriminatory animus” required to establish a 

violation of the statute. The statute covers deprivation of rights that overlap those granted by Title VII, but the rights themselves must be derived 

from other sources of law, such as the Constitution. Section 1985(3) cannot be used to enforce rights granted solely by Title VII, which must be 

enforced according to the remedial scheme in Title VII itself. Thus, in 

Great American Federal Savings & Loan Association v. Novotny,

947 the 

Supreme Court held that § 1985(3) did not provide a remedy for violations of Title VII that could be redressed under that statute.

Section 1985(3) provides for the same remedies and is enforced according to the same procedures as § 1983.

Equal Pay Act

The Equal Pay Act contains provisions that are distinctive both as a matter of substantive law and as a matter of procedure. Substantively, the 

Act requires employers to give equal pay to men and women “for equal 

work 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.”948 Much of the substantive law under the Equal 

Pay Act, like that under Title VII, is devoted to allocating the burden of 

proof. The plaintiff has the burden of proving that the work performed by 

members of both sexes is “substantially equal” according to the four factors listed in the statute: equal skill, effort, and responsibility, and similar 

working conditions.949 If the plaintiff carries the burdens of production 

and persuasion on these issues, then both burdens shift to the defendant 

to prove that one of the four exceptions justifies the difference in pay.950

 

946. United Bhd. of Carpenters, Local 610 v. Scott, 463 U.S. 825, 835 (1983).

947. 442 U.S. 366 (1979).

948. 29 U.S.C. § 206(d)(1) (2006).

949. Schultz v. Wheaton Glass Co., 421 F.2d 259, 265 (3d Cir.), cert. denied, 398 

U.S. 905 (1970).

950. Corning Glass Works v. Brennan, 417 U.S. 188, 196–97, 204–05 (1974).
V. Other Prohibitions Against Discrimination

171

A leading case, Corning Glass Works v. Brennan,

951 illustrates how 

the burden of proof operates under the Equal Pay Act. That case concerned a claim of unequal pay asserted by women who worked in the 

same position as men, as product inspectors, but during the day shift instead of the night shift. The men were paid more ostensibly because they 

worked at night, but the record also indicated that the original difference 

in pay, established in the 1920s, was based partly on the fact that only 

women worked during the day and only men worked at night. The Supreme Court held that time of work was not a matter of “similar working 

conditions,” because Congress intended to define such conditions according to technical standards, which included only the surroundings and 

hazards of employment. Since these standards excluded time of work, the 

plaintiff could establish that women performed the same work as men 

even though they worked on different shifts. The burden of proving that 

the difference in shifts justified the difference in pay was then placed on 

the defendant, who had to prove that the difference in pay fell within the 

catchall exception for “any other factor other than sex.” Because of the 

evidence that the shift differential was related to sex, the defendant lost 

on this issue and was held to have violated the Act. Moreover, the employer’s violation stood even though women had long since been admitted to the night shift. Another substantive provision of the Act requires 

employers to cure any difference in pay by raising the pay of the lowerpaid sex, which is almost invariably women.952 Because the employer 

had never raised the pay of female inspectors on the day shift to eliminate the original differential with the pay of male inspectors on the night 

shift, the employer remained in violation of the statute.

The narrowness of the Equal Pay Act is evident in several of its provisions. As a preliminary matter, its requirement of equal pay applies 

only “within any establishment,” so that differences in pay among employees in different locations operated by the same employer are not 

covered by the Act at all.953 The requirement of equal pay itself, as already noted, applies only if the prerequisite of equal work is met. Thus, 

outright discrimination against women in setting rates of pay does not 

violate the Act if the women perform different work from men—for instance, if women perform secretarial work and men perform janitorial 

 

951. Id. at 197–205.

952. 29 U.S.C. § 206(d)(1) (2006).

953. Id.
Major Issues in the Federal Law of Employment Discrimination

172

work. This conclusion holds even if women are paid less than men for 

doing work that is more valuable. The plaintiff, however, need not prove 

that women perform exactly the same work as men, only work that is 

“substantially equal” to the work of men.954 The Equal Pay Act does not 

go any further in authorizing courts to evaluate the worth of different 

jobs or to reexamine employers’ decisions about different levels of pay. 

In enacting the requirement of equal pay for equal work, Congress explicitly considered and rejected a broader requirement of equal pay for 

“comparable work.”

Legislation, however, is pending in Congress to increase the employer’s burden of proving defense (iv), allowing any difference in pay that is 

based on “any other factor other than sex.” The Paycheck Fairness Act, 

passed by the House of Representatives, but not the Senate, would substitute proof of “a bona fide factor other than sex, such as education, 

training, or experience,” and require proof of three additional elements: 

that the factor “is not based upon or derived from a sex-based differential 

in compensation”; that it “is job-related with respect to the position in 

question”; and that it “is consistent with business necessity.”955 If enacted, this provision would increase employers’ liability under the Equal 

Pay Act and perhaps affect liability under Title VII as well. As noted 

earlier in the discussion of Title VII, that statute refers to the Equal Pay 

Act and incorporates its defenses (i) through (iv) for claims of sex discrimination in pay, but it does not incorporate the requirement of proof 

of substantially equal work.956 Plaintiffs under Title VII can recover even 

if they work in substantially different jobs from those held by members 

of the opposite sex. Under the Paycheck Fairness Act, employers would 

have a heavier burden of proving defense (iv) under both the Equal Pay 

Act and Title VII.

The Equal Pay Act also differs from Title VII in its procedures for 

enforcement. The Equal Pay Act is codified as a component of the federal minimum wage law, the Fair Labor Standards Act (FLSA), and is enforced according to its procedures and only against employers covered 

by the FLSA. The Equal Pay Act, however, does extend to some em-

 

954. Schultz, 421 F.2d at 265. 

955. S. 797, § 3, 112th Cong., 1st Sess. (2011).

956. See supra text accompanying notes 328–30.
V. Other Prohibitions Against Discrimination

173

ployees exempt from coverage of the FLSA.957 The FLSA authorizes 

criminal actions for “willful” violations and civil actions, both public and 

private, against employers.958 Although the Equal Pay Act prohibits unions from causing employers to violate the statute, it provides no civil 

remedies against unions.959

The statute originally authorized the Secretary of Labor to bring public actions, but an executive reorganization plan transferred the authority 

to bring public actions to the EEOC.960 Public actions come in two forms. 

Under § 16(c),961 the EEOC can sue for back pay and an equal amount in 

liquidated damages to be awarded in the discretion of the district court. 

Under § 17,962 the EEOC can sue for injunctive relief, including an order 

for back pay, but not liquidated damages.963 The difference between actions under the two sections is largely a result of parallel judicial interpretations and statutory amendments that have not yet been integrated in 

a complete revision of the enforcement provisions of the FLSA.

Private individuals can sue under § 216(b), but only if they have not 

previously accepted relief in a public action and if a public action has not 

yet been filed on their behalf.964 Private individuals are entitled to back 

pay and, in the discretion of the district court, an equal amount in liquidated damages.965 They are also entitled to an award of attorney’s fees.966

Employees can be brought into a private action under the FLSA only by 

their written consent, a requirement that has been interpreted to allow 

only opt-in class actions.967

 

957. 29 U.S.C. §§ 203, 213, 216–217 (2006). The application of the FLSA to commercial enterprises operated by a religious organization does not violate the religion 

clauses of the First Amendment. Tony & Susan Alamo Found. v. Sec’y of Labor, 471 

U.S. 290, 303–06 (1985).

958. 29 U.S.C. § 216(a) (2006).

959. Id. §§ 216–217. But see Hodgson v. Sagner, Inc., 326 F. Supp. 371 (D. Md. 

1971) (remedy awarded against union).

960. 29 U.S.C. §§ 216 (2006); Reorganization Plan No. 1 of 1978, § 1, reprinted in

5 U.S.C. app. at 206 (2006), and in 92 Stat. 3781 (1978).

961. 29 U.S.C. § 216(c) (2006).

962. Id. § 217.

963. E.g., Brennan v. Bd. of Educ., 374 F. Supp. 817 (D.N.J. 1974).

964. 29 U.S.C. § 216(b)–(c) (2006).

965. Id. §§ 216(b), 260.

966. Id. § 216(b).

967. Id. See Hoffman-LaRoche Inc. v. Sperling, 493 U.S. 165, 169 (1989) (federal 

district court has discretion to facilitate notice to class members in ADEA action); LaCh-
Major Issues in the Federal Law of Employment Discrimination

174

Exhaustion of administrative remedies is not required under the 

FLSA. The FLSA provides a limitation of two years for an ordinary violation and three years for a “willful violation,” where a “willful violation” is defined as an action taken in knowing or reckless disregard of the 

fact that it is in violation of the law.968 Unreasonable conduct alone is not 

enough to support a longer limitation period.969 The FLSA also provides 

for a complete defense of reliance on written policy970 and a partial defense of good faith, or reasonable belief in compliance with the Act, 

which may reduce liquidated damages in the discretion of the district 

court.971 Despite these provisions for liquidated damages, the most distinctive feature of the Equal Pay Act is the narrowness of its prohibition: 

only for sex discrimination, only in pay, and only in jobs that are substantially equal.

Regulation of Federal Contractors

The most comprehensive prohibitions against discrimination by federal 

contractors are derived not from a statute but from a presidential order. 

Executive Order 11,246 prohibits discrimination and requires affirmative 

action on the basis of race, national origin, sex, and religion.972 Like 

§ 503 of the Rehabilitation Act,973 the executive order is enforced by the 

Office of Federal Contract Compliance Programs (OFCCP) in the Department of Labor. Unlike § 503, however, the executive order has never 

been explicitly authorized or enacted by Congress, a deficiency that 

gives rise to persistent questions about its scope and validity.

The executive order states the obligations of federal contractors in 

only the most general terms, which are then spelled out in great detail in 

the regulations issued by the OFCCP. The resulting scheme of regulations is as elaborate as the statutory law under Title VII but differs from 

it in several crucial respects. First, the executive order requires affirmative action rather than simply the prohibition of discrimination. Second, 

 

appelle v. Owens-Illinois, Inc., 513 F.2d 286 (5th Cir. 1975) (opt-in class action allowed 

on ADEA claim under same provision).

968. McLaughlin v. Richland Shoe Co., 486 U.S. 128, 131–35 (1988). 

969. Id. at 135 n.13.

970. 29 U.S.C. § 259 (2006).

971. Id. § 260.

972. 3 C.F.R. 339 (1964–1965), reprinted as amended in 42 U.S.C. § 2000e (2006).

973. 29 U.S.C. § 793 (2006). See supra text accompanying note 764.
V. Other Prohibitions Against Discrimination

175

it is enforced mainly through administrative procedures instead of private 

litigation. Third, the executive order has been interpreted and implemented primarily through administrative regulations rather than judicial 

opinions. A full account of the employment obligations of federal contractors would go into each of these features in great detail. This section 

can only summarize them briefly.

Executive Order 11,246 applies to all contractors with contracts in 

excess of $10,000, and it imposes increased compliance and reporting 

requirements on contractors with contracts in excess of $50,000.974 It 

imposes nondiscrimination and affirmative action obligations, but only 

the latter have been controversial. Employers with contracts in excess of 

$50,000 must prepare written affirmative action plans containing a “work 

force analysis”; a determination whether any racial or ethnic minority 

group or women have been “underutilized” by the employer; and “goals 

and timetables” to remedy any underutilization found.975 The regulations 

elaborate on each of these three requirements and add further requirements as well, and compliance is enforced by administratively imposed 

sanctions.976 Moreover, special provisions apply to employers with federal construction contracts in excess of $10,000, including goals set by 

the OFCCP for employment of minority groups and women in most major geographical areas.977

All of these various requirements are enforced almost entirely 

through administrative decisions of the OFCCP to terminate contracts or 

to suspend or debar contractors, but public actions may be brought 

against contractors to enforce their obligations under the executive order.978 The OFCCP can also seek awards of back pay in administrative 

enforcement proceedings.979 Private individuals cannot sue under the executive order, although in limited circumstances, they can sue to require 

the OFCCP to take enforcement action.980

The process of administrative enforcement lends a degree of flexibility to the OFCCP regulations on affirmative action, reducing the incen-

 

974. 41 C.F.R. §§ 60-1.5(a)(1), -1.40(a) (2006).

975. Id. §§ 60-2.11, -2.12.

976. Id. §§ 60-1.26, -1.27, -2.13, -2.14, -2.20 to -2.26.

977. Id. pt. 60-4.

978. Id. § 60-1.26.

979. Id. § 60-1.26(a)(2).

980. See Legal Aid Soc’y v. Brennan, 608 F.2d 1319 (9th Cir. 1979), cert. denied, 

447 U.S. 921 (1980).
Major Issues in the Federal Law of Employment Discrimination

176

tives of federal contractors to challenge their validity. The OFCCP enforces these regulations along with the prohibition against discrimination 

by federal contractors, saving the most severe sanctions for the employers found to have engaged in outright discrimination. As a practical matter, most enforcement proceedings result in negotiated settlements in 

which the employer retains its eligibility for federal contracts in exchange for changes in its personnel practices to meet the demands of the 

OFCCP. Because a settlement cuts off any further proceedings, the 

OFCCP usually has the last word on the implementation of the executive 

order, either formally through its regulations or informally through its 

administrative enforcement policy. The opportunities for judicial review 

of a case that is settled are minimal, and when sanctions are actually imposed, they are usually based on clear evidence of discrimination. For 

these reasons, few challenges have been brought in recent years to the 

validity of the OFCCP regulations on affirmative action.

Several such challenges were brought, however, soon after the regulations were issued in substantially their present form. All of these challenges were rejected on the ground that the regulations served the government interest in eliminating past discrimination, particularly in the 

construction industry.981 It is doubtful that similar challenges today 

would be resolved in precisely the same way, after the subsequent decisions of the Supreme Court requiring strict scrutiny of all racial classifications by government. Nevertheless, it is a question not likely to be resolved as long as the OFCCP moderates the literal requirements of its 

regulations through its enforcement policy.

An independent basis for challenging the OFCCP regulations relies 

on the limited congressional authority on which they are based. The only 

statute that explicitly confers authority on the President to issue the executive order concerns general policies for procuring goods and services 

for the federal government; it does not address the employment practices 

of federal contractors.982 The closest that Congress has come to specifically endorsing the executive order is a provision, added to Title VII in 

1972, that specifies the procedures that must be followed before any 

 

981. E.g., Ne. Constr. Co. v. Romney, 485 F.2d 752, 757–58 (D.C. Cir. 1973); Contractors Ass’n v. Sec’y of Labor, 442 F.2d 159, 171 (3d Cir.), cert. denied, 404 U.S. 854 

(1971).

982. 40 U.S.C. § 121(a) (2006).
V. Other Prohibitions Against Discrimination

177

sanctions may be imposed on federal contractors.983 This provision presupposes the validity of the executive order and its implementing regulations without, however, explicitly authorizing or endorsing it. The Supreme Court openly doubted whether this degree of congressional 

support was sufficient in Chrysler Corp. v. Brown,

984 a complicated action to enjoin disclosure of an affirmative action plan under the Freedom 

of Information Act. A few lower federal courts have followed up on

these doubts and restricted the scope of the executive order to employment practices closely connected with federal procurement.985 No court, 

however, has rejected the overall validity of the executive order and the 

regulations based on it, presumably because Congress has now, for several decades, acquiesced in their operation.

Regulation of Recipients of Federal Funds

Recipients of federal funds, like federal contractors, are subject to special 

prohibitions against discrimination tied to their receipt of federal money. 

Again, the Rehabilitation Act, in § 504, provides an example of this form 

of regulation.986 This provision itself was modeled on Title VI of the Civil Rights Act of 1964,987 which prohibits racial discrimination by recipients of federal funds. Title IX of the Education Amendments of 1972988

also follows the model of Title VI in prohibiting sex discrimination by 

educational institutions that receive federal funds.

Title VI prohibits employment discrimination only “where a primary 

objective of the Federal financial assistance is to provide employment.”989 Title VI has therefore been limited in its application to employment cases. Its coverage was further restricted by a decision of the 

Supreme Court that applied its prohibitions only to the precise programs 

that received federal funds.990 This decision applied to all statutes mod-

 

983. § 718, 42 U.S.C. § 2000e-17 (2006). See Robert P. Schuwerk, Comment, The 

Philadelphia Plan: A Study in the Dynamics of Executive Power, 39 U. Chi. L. Rev. 723 

(1972).

984. 441 U.S. 281, 303–08 (1979).

985. E.g., Liberty Mut. Ins. Co. v. Friedman, 639 F.2d 164 (4th Cir. 1981).

986. 29 U.S.C. § 794 (2006).

987. 42 U.S.C. §§ 2000d to 2000d-4 (2006).

988. 20 U.S.C. §§ 1681–1685 (2006).

989. 42 U.S.C. § 2000d-3 (2006).

990. Grove City Coll. v. Bell, 465 U.S. 555, 570–74 (1984).
Major Issues in the Federal Law of Employment Discrimination

178

eled on Title VI, but it was superseded by legislation that expanded the 

coverage of these statutes to reach all the operations of an entity if any 

part of it received federal funds.991 Title VI, however, has been limited in 

other ways as well, particularly insofar as regulations under Title VI prohibit practices with disparate impact. These regulations were upheld by 

the Supreme Court, but in a decision denying the availability of compensatory relief.992 Most recently, the Supreme Court has also denied a private right of action for enforcing these regulations.993

Title IX of the Education Amendments of 1972 is limited only to sex 

discrimination in educational institutions. Unlike Title VI, however, Title 

IX prohibits employment discrimination by educational institutions regardless of the purpose of the federal funding.994 The usual remedy under 

Title IX, as under Title VI, is a public action, either through administrative proceedings to cut off federal funding or in court to require compliance with the statute.995 Private plaintiffs can nevertheless bring individual actions to enforce Title IX, as well as Title VI.996

A number of other statutes that authorize the award of federal funds 

prohibit discrimination on the basis of race, national origin, sex, and religion in the funded programs. There are, for instance, the Public Works 

Employment Act of 1977,997 the Railroad Revitalization and Regulatory 

Reform Act,998 and the Housing and Community Development Act of 

1974.999 Like Title VI and Title IX, these acts give rise to questions about 

the scope of their prohibitions and the availability of private actions to 

enforce them. In recent years, however, claims under such statutes have 

diminished in both number and significance. The focus of litigation has 

 

991. 20 U.S.C. §§ 1687, 1688 (2006); 42 U.S.C. § 2000d-4a (2006).

992. Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 584, 607 n.27 (1983) 

(opinion of White, J.).

993. Alexander v. Sandoval, 532 U.S. 275, 282–93 (2001).

994. N. Haven Bd. of Educ. v. Bell, 456 U.S. 512 (1982).

995. 20 U.S.C. §§ 1682, 1683; 42 U.S.C. §§ 2000d-1, d-2 (2006).

996. Cannon v. Univ. of Chicago, 441 U.S. 677, 717 (1979); Franklin v. Gwinnett 

Cnty. Pub. Sch., 503 U.S. 60, 70–71 (1992). But see Barnes v. Gorman, 536 U.S. 181, 

184–88 (2002) (punitive damages cannot be awarded against state agencies under ADA 

and Rehabilitation Act in claims modeled on Title VI).

997. 42 U.S.C. § 6709 (2006).

998. 49 U.S.C. § 306 (2006).

999. 42 U.S.C. § 5309 (2006).
V. Other Prohibitions Against Discrimination

179

shifted primarily to statutes, like Title VII, that specifically prohibit discrimination in employment.

Statutes on Other Subjects

Federal statutes regulating other subjects have occasionally been interpreted to prohibit discrimination in employment. The most important of 

these are the National Labor Relations Act1000 and the Railway Labor 

Act.1001 These prohibit discrimination on the basis of race and sex, and 

probably also on the basis of religion and national origin, by unions certified to represent employees in collective bargaining.1002 They do not, 

however, prevent certification of a union that has engaged in discrimination.1003 The prohibitions against discrimination in collective bargaining 

agreements fostered by these statutes provide a more important remedy 

for employment discrimination, enforced through the grievance and arbitration procedures commonly found in such agreements.1004 The National 

Labor Relations Act also contains a special provision to accommodate 

employees who have religious objections to paying dues to a union pursuant to a union security clause.1005

The availability of implied remedies under other statutes has been 

limited by the Supreme Court’s decision in NAACP v. Federal Power 

Commission.

1006 The Court held that agencies regulating other subjects, 

such as the rates for the sale and transmission of gas and electricity, 

could consider claims of employment discrimination only as they affected the employer’s ability to comply with the statute administered by the 

agency. This decision reinforces the position of Title VII and other statutes specifically prohibiting employment discrimination as the predominant sources of authority in this field.

 

1000. 29 U.S.C. §§ 151–169 (2006).

1001. 45 U.S.C. §§ 151–163 (2006).

1002. Ford Motor Co. v. Huffman, 345 U.S. 330 (1953); Steele v. Louisville & 

Nashville R.R., 323 U.S. 192 (1944).

1003. Handy Andy, Inc., 228 N.L.R.B. 447 (1977).

1004. See Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974).

1005. 29 U.S.C. § 169 (2006).

1006. 425 U.S. 662 (1976).

181

Selected Bibliography

The headings in this bibliography follow the subject headings in the 

monograph, beginning with Title VII of the Civil Rights Act of 1964 and 

then proceeding to other federal statutes that prohibit employment discrimination. Unlike previous editions of the monograph, this edition contains entries only for the most general or most recent sources.

General

John J. Donohue III, Foundations of Employment Discrimination Law (Foundation 2d ed. 2003) (edited collection of articles).

Barbara Lindemann & Paul Grossman, Employment Discrimination Law (BNA 

4th ed. 2007 & Supp. 2008).

Owen M. Fiss, A Theory of Fair Employment Laws, 38 U. Chi. L. Rev. 235 

(1971).

Deborah Hellman, When Is Discrimination Wrong? (2008).

Mark Kelman, Market Discrimination and Groups, 53 Stan. L. Rev. 833 (2001).

George P. Sape & Thomas J. Hart, Title VII Reconsidered: The Equal Employment Opportunity Act of 1972, 40 Geo. Wash. L. Rev. 824 (1972).

Symposium, Visions of Equality: The Future of Title VII, 92 Mich. L. Rev. 2311 

(1994).

Francis J. Vaas, Title VII: Legislative History, 7 B.C. Indus. & Com. L. Rev. 

431 (1966).

Proof of Discrimination

Deborah L. Brake, Retaliation, 90 Minn. L. Rev. 18 (2005).

David Faigman et al., A Matter of Fit: The Law of Discrimination and the Science of Implicit Bias, 59 Hastings L.J. 1389 (2008).

Monahan et al., Contextual Evidence of Gender Discrimination: The Ascendance of “Social Frameworks,” 94 Va. L. Rev. 1715 (2008).

Richard Primus, Equal Protection and Disparate Impact: Round Three, 117 

Harv. L. Rev. 493 (2003).

Charles A. Sullivan, The World Turned Upside Down?: Disparate Impact 

Claims by White Males, 98 Nw. U. L. Rev. 1505 (2004). 

Michael J. Zimmer, A Chain of Inferences Proving Discrimination, 79 U. Colo. 

L. Rev. 1243 (2008).
Major Issues in the Federal Law of Employment Discrimination

182

Statistics

David C. Baldus & James W. Cole, Statistical Proof of Discrimination (Shepard’s 1980).

D. James Griener, Causal Inference in Civil Rights Litigation, 122 Harv. L. Rev. 

533 (2008).

Paul Meier, Jerome Sacks & Sandy L. Zabell, What Happened in Hazelwood: 

Statistics, Employment Discrimination, and the 80% Rule, 1984 Am. B. 

Found. Res. J. 139.

Ramona Paetzold & Steven L. Willborn, Deconstructing Disparate Impact: A 

View of the Model Through New Lenses, 74 N.C. L. Rev. 325 (1996).

Affirmative Action

John H. Ely, The Constitutionality of Reverse Racial Discrimination, 41 U. Chi. 

L. Rev. 723 (1974).

Samuel Issacharoff, Law and Misdirection in the Debate over Affirmative Action, 2002 U. Chi. Legal F. 11.

John C. Jeffries, Jr., Bakke Revisited, 2003 Sup. Ct. Rev. 1.

Jed Rubenfeld, Affirmative Action, 107 Yale L.J. 427 (1997).

Peter H. Schuck, Diversity in America : Keeping Government at a Safe Distance 

(2003).

Sex Discrimination

Herma Hill Kay, Models of Equality, 1985 U. Ill. L. Rev. 39.

Symposium, The Law of Sex Discrimination, 1999 U. Chi. Legal F. 1.

Symposium, Women in the Workplace, 13 Duke J. Gender L. & Pol’y 1 (2006).

Paul Weiler, The Wages of Sex: The Uses and Limits of Comparable Worth, 99 

Harv. L. Rev. 1728 (1986).

Joan Williams, Unbending Gender: Why Family and Work Conflict and What 

to Do About It (2000).

Sexual Harassment

Directions in Sexual Harassment Law (Catharine A. MacKinnon & Reva B. 

Siegel, eds. 2004).

Michael C. Harper, Employer Liability for Harassment Under Title VII: A Functional Rationale for Faragher and Ellerth, 36 San Diego L. Rev. 41 (1999).

Ann Juliano & Stewart J. Schwab, The Sweep of Sexual Harassment Cases, 86 

Cornell L. Rev. 548 (2001).

Vicki Schultz, Reconceptualizing Sexual Harassment, 107 Yale L.J. 1683 

(1998).

Vicki Schultz, The Sanitized Workplace, 112 Yale L.J. 2061 (2003).
Selected Bibliography

183

Symposium, Strengthening Title VII: 1997–1998 Sexual Harassment Jurisprudence, 7 Wm. & Mary Bill Rts. J. 671 (1999).

Kimberly A. Yuracko, Private Nurses and Playboy Bunnies: Explaining Permissible Sex Discrimination, 92 Cal. L. Rev. 147 (2004).

Religious Discrimination

Kent Greenawalt, Title VII and Religious Liberty, 33 Loy. U. Chi. L.J. 1 (2001).

Eugene Volokh, Freedom of Speech, Religious Harassment Law, and Religious 

Accommodation Law, 33 Loy. U. Chi. L.J. 57 (2001).

Class Actions

Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 

N.Y.U. L. Rev. 97 (2009).

Daniel F. Piar, The Uncertain Future of Title VII Class Actions After the Civil 

Rights Act of 1991, 2001 BYU L. Rev. 305.

George Rutherglen, Title VII Class Actions, 47 U. Chi. L. Rev. 688 (1980).

Arbitration

Harry T. Edwards, Where Are We Heading with Mandatory Arbitration of Statutory Claims in Employment?, 16 Ga. St. U. L. Rev. 293 (1999).

Symposium, Gilmer v. Interstate/Johnson Lane Corporation: Ten Years After, 16 

Ohio St. J. on Disp. Resol. 463 (2001).

Age Discrimination

Richard A. Posner, Aging and Old Age (University of Chicago 1995). 

Howard Eglit, The Age Discrimination in Employment Act, Title VII, and the 

Civil Rights Act of 1991: Three Acts and a Dog That Didn’t Bark, 39 

Wayne L. Rev. 1093 (1993).

Samuel Issacharoff & Erica Worth Harris, Is Age Discrimination Really Age 

Discrimination? The ADEA’s Unnatural Solution, 72 N.Y.U. L. Rev. 780 

(1997).

Disabilities

Samuel R. Bagenstos, Law and the Contradictions of the Disability Rights 

Movement (2009).

Samuel R. Bagenstos, The Americans with Disabilities Act as Risk Regulation,

101 Colum. L. Rev. 1479 (2001).

Christine Jolls, Accommodation Mandates, 53 Stan. L. Rev. 223 (2000).

Christine Jolls, Antidiscrimination and Accommodation, 115 Harv. L. Rev. 642 

(2001).
Major Issues in the Federal Law of Employment Discrimination

184

Adam M. Samaha, What Good Is the Social Model of Disability?, 74 U. Chi. L. 

Rev. 1251 (2007).

Symposium, Backlash Against the ADA: Interdisciplinary Perspectives and Implications for Social Justice Strategies, 21 Berkeley J. Emp. & Lab. L. 1 

(2000).

Symposium, Disability and Identity, 44 Wm. & Mary L. Rev. 907 (2003).

Symposium, Special Issue Commemorating the Tenth Anniversary of the Americans with Disabilities Act, 85 Iowa L. Rev. 1569 (2000).
Table of Cases

Achor v. Riverside Golf Club, 117 F.3d 339 (7th Cir. 1997), 22

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), 60–61

AFSCME v. State of Wash., 770 F.2d 1401 (9th Cir. 1985), 73

Air Line Pilots Association v. Trans World Airlines, Inc., 713 F.2d 940 (2d Cir. 

1983), 138

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), 36, 38, 41, 46–47, 66, 

114–15, 147

Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999), 152

Albra v. Advan, Inc., 490 F.3d 826 (11th Cir. 2007), 90

Alden v. Maine, 527 U.S. 706 (1999), 140

Alexander v. Choate, 469 U.S. 287 (1985), 144

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), 104, 181

Alexander v. Sandoval, 532 U.S. 275 (2001), 180

Ambach v. Norwick, 441 U.S. 68 (1979), 170

Amburgey v. Corhart, 936 F.2d 805 (5th Cir. 1991), 131

American Tobacco Co. v. Patterson, 456 U.S. 63 (1982), 64

Anderson v. Baxter Healthcare Corp., 13 F.3d 1120 (7th Cir. 1994), 131

Anderson v. Bessemer City, 470 U.S. 564 (1985), 19

Anderson v. Conboy, 156 F.3d 167 (2d Cir. 1998), 166

Ansonia Board of Education v. Philbrook, 479 U.S. 60 (1986), 85

Arbaugh v. Y & H Corp., 546 U.S. 500 (2006), 91

Arizona Governing Committee v. Norris, 463 U.S. 1073 (1983), 69, 74, 91, 115, 

147

Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006), 19

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), 19, 96

Astoria Federal Savings & Loan Association v. Solimino, 501 U.S. 104 (1991), 

92

Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985), 145

AT&T Corp. v. Hulteen, 129 S. Ct. 1962 (2009), 100

AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011) 106

Bailey v. Federal National Mortgage Association, 209 F.3d 740 (D.C. Cir. 

2000), 106

Baldwin County Welcome Center v. Brown, 466 U.S. 147 (1984), 96
Major Issues in the Federal Law of Employment Discrimination

186

Barnes v. Gorman, 536 U.S. 181 (2002), 146, 180

Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000), 164

Bazemore v. Friday, 478 U.S. 385 (1986), 32-33, 99, 102

Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959), 112

Berg v. La Crosse Cooler Co., 612 F.2d 1041 (7th Cir. 1980), 87

Bernal v. Fainter, 467 U.S. 216 (1984), 170

Bhandari v. First National Bank of Commerce, 887 F.2d 609 (5th Cir. 1989), 

166

Blanchard v. Bergeron, 489 U.S. 87 (1989), 126

Blum v. Stenson, 465 U.S. 886 (1984), 126

Board of Trustees v. Sweeney, 439 U.S. 24 (1978), 15, 18

Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356 (2001), 

152

Boerne, City of, v. Flores, 521 U.S. 507 (1997), 86

Borkowski v. Valley Central School District, 63 F.3d 131 (2d Cir. 1995), 161–

62

Bradford v. Rockwell Semiconductor Inc., 238 F.3d 549 (4th Cir. 2001), 106

Bradley v. Pizzaco of Nebraska, Inc., 7 F.3d 795 (8th Cir. 1993), 49

Bragdon v. Abbott, 524 U.S. 624 (1998), 151

Brennan v. Board of Education, 374 F. Supp. 817 (D.N.J. 1974), 175

Bridges v. Eastman Kodak Co., 800 F. Supp. 1172 (S.D.N.Y. 1992), 75

Brinn v. Tidewater Transportation District Commission, 242 F.3d 227 (4th Cir. 

2001), 149

Briscoe v. City of New Haven, 654 F.3d 200 (2d Cir. 2011).

Brotherhood of Midwest Guardians Inc. v. City of Omaha, 9 F.3d 677 (8th Cir. 

1993), 128

Brown v. General Services Administration, 425 U.S. 820 (1976), 109

Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health 

& Human Resources, 532 U.S. 598 (2001), 121–22

Bultemeyer v. Fort Wayne Community School, 100 F.3d 1281 (7th Cir. 1996), 

163

Burlington, City of, v. Dague, 505 U.S. 557 (1992), 126

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), 76

Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), 88

Burnett v. Grattan, 468 U.S. 42 (1984), 168

Butts v. Volusia County, 222 F.3d 891 (11th Cir. 2000), 168
Table of Cases

187

Cabrera v. Jakabovitz, 24 F.3d 372 (2d Cir. 1994), 22

California Brewers Association v. Bryant, 444 U.S. 598 (1980), 64

California Federal Savings & Loan Association v. Guerra, 479 U.S. 272 (1987), 

71

Cannon v. Univ. of Chicago, 441 U.S. 677 (1979), 180

Canup v. Chipman-Union, Inc., 123 F.3d 1440 (11th Cir. 1997), 122

Carrion v. Yeshiva University, 535 F.2d 722 (2d Cir. 1976), 120

CBOCS V. Humphries, 128 S. Ct. 1951 (2008), 166

Celotex Corp. v. Catrett, 477 U.S. 317 (1986), 21

Chaline v. KCOH, Inc., 693 F.2d 477 (5th Cir. 1982), 15

Chandler v. Roudebush, 425 U.S. 840 (1976), 109

Chardon v. Fernandez, 454 U.S. 6 (1981), 169

Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002), 148

Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), 120, 122

Chris v. Tenet, 221 F.3d 648 (4th Cir. 2000), 123

Chrysler Corp. v. Brown, 441 U.S. 281 (1979), 179

Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001), 105

Circuit City Stores, Inc. v. Adams, 279 F.3d 889 (9th Cir. 2002), 106

Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003), 90

Clark County School District v. Breeden, 532 U.S. 268 (2001), 79-80

Clay v. United Parcel Service, Inc., 501 F.3d 695 (6th Cir. 2007), 17

Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974), 69

Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999), 163

Coleman v. Maryland Court of Appeals, 626 F.3d 187 (4th Cir. 2010), 97

Commissioner v. Banks, 543 U.S. 426 (2005), 118

Commissioner v. Burke, 504 U.S. 229 (1992), 116

Commissioner v. Schleier, 515 U.S. 323 (1995), 116

Connecticut v. Teal, 457 U.S. 440 (1982), 28, 42

Consolidated Rail Corp. v. Darrone, 465 U.S. 624 (1984), 143, 145

Contractors Association v. Secretary of Labor, 442 F.2d 159 (3d Cir. 1971), 178

Contreras v. City of Los Angeles, 656 F.2d 1267 (9th Cir. 1981), 48

Cooper v. Federal Reserve Bank, 467 U.S. 867 (1984), 102

Corning Glass Works v. Brennan, 417 U.S. 188 (1974), 72, 173

Cramer v. McDonnell Douglas Corp., 120 F.3d 874 (8th Cir. 1997), 131

Crawford v. Metropolitan Government of Nashville & Davidson County, 129 S. 

Ct. 846 (2009), 86
Major Issues in the Federal Law of Employment Discrimination

188

Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437 (1987), 113

Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983), 97

Crum v. Alabama (In re Employment Discrimination Litigation against the State 

of Alabama), 198 F.3d 1305 (11th Cir. 1999), 140

Curtis v. Loether, 415 U.S. 189 (1974), 168

Cush-Crawford v. Adchem Corp., 94 F. Supp. 2d 294 (E.D.N.Y. 2000), 112

Dairy Queen v. Wood, 369 U.S. 469 (1962), 112

D’Amato v. Wisconsin Gas Co., 760 F.2d 1474 (7th Cir. 1985), 143

Dashnaw v. Pena, 12 F.3d 1112 (D.C. Cir. 1994), 117

Davis v. Passman, 442 U.S. 228 (1979), 9, 109

Delaware State College v. Ricks, 449 U.S. 250 (1980), 97

Delta Air Lines v. August, 450 U.S. 346 (1981), 124

Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), 26

Detroit Police Officers Association v. Young, 989 F.2d 225 (6th Cir. 1993), 128

Diaz v. Pan American World Airways, Inc., 442 F.2d 385 (5th Cir. 1971), 67

Dillon v. Coles, 746 F.2d 998 (3d Cir. 1984), 116

Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470 (2006), 166

Dormeyer v. Comerica Bank-Illinois, 223 F.3d 579 (7th Cir. 2000), 71

Dothard v. Rawlinson, 433 U.S. 321 (1977), 38, 47, 66-67, 135

Douglas v. California Department of Youth Authority, 271 F.3d 812 (9th Cir. 

2001), 145

Dreyer v. Arco Chemical Co., 801 F.2d 651 (3d Cir. 1986), 138

Duane v. GEICO, 37 F.3d 1036 (4th Cir. 1994), 166

East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395 (1977), 101

Edelman v. Lynchburg Coll., 535 U.S. 106 (2002), 96

EEOC v. Alton Packaging Corp., 901 F.2d 920 (11th Cir. 1990), 16

EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991), 91

EEOC v. Associated Dry Goods Corp., 449 U.S. 590 (1981), 101

EEOC v. Commercial Office Products Co., 486 U.S. 107 (1988), 95

EEOC v. Exxon Corp., 203 F.3d 871 (5th Cir. 2000), 148

EEOC v. Joe’s Stone Crab Inc., 296 F.3d 1265 (11th Cir. 2002), 119

EEOC v. Mississippi College, 626 F.2d 477 (5th Cir. 1980), 84

EEOC v. Pacific Press Publishing Association, 676 F.2d 1272 (9th Cir. 1982), 

84
Table of Cases

189

EEOC v. Raymond Metal Products Co., 530 F.2d 590 (4th Cir. 1976), 107

EEOC v. Sage Realty Corp., 507 F. Supp. 599 (S.D.N.Y. 1981), 69

EEOC v. Shell Oil Co., 466 U.S. 54 (1984), 107

EEOC v. Southwestern Baptist Theological Seminary, 651 F.2d 277 (5th Cir. 

1981), 84

EEOC v. Waffle House, Inc., 534 U.S. 279 (2002), 106

EEOC v. Wyoming, 460 U.S. 226 (1983), 129, 140

Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229 (1976), 97

Employment Division, Department of Human Resources of Oregon v. Smith, 

494 U.S. 872 (1990), 85

Emporium Capwell Co. v. Western Addition Community Organization, 420 

U.S. 50 (1975), 87

Enlow v. Salem-Keizer Yellow Cab Co., Inc., 389 F.3d 802 (9th Cir. 2004), 16

Erickson v. Bartell Drug Co., 141 F. Supp. 2d 1266 (W.D. Wash. 2001), 71

Erie County Retirees Association v. County of Erie, 220 F.3d 193 (3d Cir. 

2000), 134

Eshelman v. Agere Systems, Inc., 554 F.3d 426 (3d Cir. 2009), 117

Espinoza v. Farah Manufacturing Co., 414 U.S. 86 (1973), 82

Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985), 85

Evans v. City of Bishop, 238 F.3d 586 (5th Cir. 2001), 140

Evans v. Jeff D., 475 U.S. 717 (1986), 123

Faragher v. City of Boca Raton, 524 U.S. 775 (1998), 76, 78, 80

Farrar v. Hobby, 506 U.S. 103 (1992), 121

Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008), 96

Federation of African American Contractors v. City of Oakland, 96 F.3d 1204 

(9th Cir. 1996), 168

Fernandes v. Costa Brothers Masonry, Inc., 199 F.3d 572 (1st Cir. 1999), 26

Fesel v. Masonic Home of Delaware, Inc., 447 F. Supp. 1346 (D. Del. 1978), 68

Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561 (1984), 56

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), 120, 140

Florida v. Long, 487 U.S. 223 (1988), 74

Folie v. Connelie, 435 U.S. 291 (1978), 170

Ford Motor Co. v. EEOC, 458 U.S. 219 (1982), 115

Ford Motor Co. v. Huffman, 345 U.S. 330 (1953), 181

Forts v. Ward, 621 F.2d 1210 (2d Cir. 1980), 67
Major Issues in the Federal Law of Employment Discrimination

190

Franklin v. Gwinnett County Public School, 503 U.S. 60 (1992), 180

Franks v. Bowman Transportation Co., 424 U.S. 747 (1976), 65, 115, 119

Fullilove v. Klutznick, 448 U.S. 448 (1980), 60

Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978), 15, 18, 25

14 Penn Plaza LLC v. Pyett, 129 S. Ct. 1456 (2009), 105

Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980), 83

Garcia v. Spun Steak Co., 998 F.2d 1480 (9th Cir. 1993), 39, 83

Gardner v. Morris, 752 F.2d 1271 (8th Cir. 1985), 144

Geduldig v. Aiello, 417 U.S. 484 (1974), 69-70

Gellington v. Christian Methodist Episcopal Church, Inc., 203 F.3d 1299 (11th 

Cir. 2000), 84

General Building Contractors Association v. Pennsylvania, 458 U.S. 375 (1982), 

166

General Dynamics Land Sytems, Inc. v. Cline, 540 U.S. 581 (2004), 129

General Electric Co. v. Gilbert, 429 U.S. 125 (1976), 38, 70

General Telephone Co. v. EEOC, 446 U.S. 318 (1980), 102

General Telephone Co. v. Falcon, 457 U.S. 147 (1982), 102

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), 105

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987), 13, 168

Grant v. Lone Star Co., 21 F.3d 649 (5th Cir. 1994), 90

Great American Federal Savings & Loan Association v. Novotny, 442 U.S. 366 

(1979), 172

Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003), 105

Griffin v. Breckenridge, 403 U.S. 88 (1971), 171

Griffith v. City of Des Moines, 387 F.3d 733 (8th Cir. 2004), 16

Griggs v. Duke Power Co., 401 U.S. 424 (1971), 36–37, 38–39, 41, 44, 81, 147

Groesch v. City of Springfield, 635 F.3d 1020 (7th Cir. 2011), 100

Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009), 28, 130, 132

Grove City College v. Bell, 465 U.S. 555 (1984), 145, 180

Grutter v. Bollinger, 539 U.S. 306 (2003), 61

Guardians Association v. Civil Service Commission, 463 U.S. 582 (1983), 180

Guardians Association v. Civil Service Commission, 630 F.2d 79 (2d Cir. 1980), 

48

Gudenkauf v. Stauffer Communications, Inc., 158 F.3d 1074 (10th Cir. 1998), 

122
Table of Cases

191

Guilino v. New York State Education Department, 460 F3d. 361 (2d Cir. 2006), 

39

Hafer v. Melo, 502 U.S. 21 (1991), 171

Hagelthorn v. Kennecott Corp., 710 F.2d 76 (2d Cir. 1983), 22

Hall v. U.S. Postal Service, 857 F.2d 1073 (6th Cir. 1988), 144

Hampton v. Mow Sun Wong, 426 U.S. 88 (1976), 170

Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), 78–79

Harrison v. Eddy Potash, 248 F.3d 1014 (10th Cir. 2001), 76

Harriss v. Pan American World Airways, Inc., 649 F.2d 670 (9th Cir. 1980), 70

Hazelwood School District v. United States, 433 U.S. 299 (1977), 30-34, 41-43

Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993), 130

Hensley v. Eckerhart, 461 U.S. 424 (1983), 24, 121, 125–26

Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982), 75

Hewitt v. Helms, 482 U.S. 755 (1987), 121

Hicks v. ABT Associates, Inc., 572 F.2d 960 (3d Cir. 1978), 87

Higgins v. New Balance Athletic Shoes, Inc., 194 F.3d 252 (1st Cir. 1999), 79

Hill v. Berkman, 635 F. Supp. 1228 (E.D.N.Y. 1986), 109

Hill v. Lockheed Martin Logistics Management, Inc., 354 F.3d 277, 285 (4th 

Cir. 2004), 17-18

Hirabayashi v. United States, 320 U.S. 81 (1943), 81

Hishon v. King & Spaulding, 467 U.S. 69 (1984), 91

Hochstadt v. Worcester Foundation for Experimental Biology, 545 F.2d 222 (1st 

Cir. 1976), 87

Hodgson v. Sagner, Inc., 326 F. Supp. 371 (D. Md. 1971), 175

Hoffman-LaRoche Inc. v. Sperling, 493 U.S. 165 (1989), 176

Holman v. Indiana, 211 F.3d 399 (7th Cir. 2000), 79

Hutto v. Finney, 437 U.S. 678 (1978), 120

Independent Federation of Flight Attendants v. Zipes, 491 U.S. 754 (1989), 120

Indest v. Freeman Decorating, Inc., 164 F.3d 258 (5th Cir. 1999), 76

Indurante v. Local 705, International Brotherhood of Teamsters, 160 F.3d 364 

(7th Cir. 1998), 27

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

29-30, 33–34, 64, 114, 118–19

International Union v. Johnson Controls, Inc., 499 U.S. 187 (1991), 67–70, 135, 

170, 187
Major Issues in the Federal Law of Employment Discrimination

192

Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990), 109

Jalil v. Avdel Corp., 873 F.2d 701 (3d Cir. 1989), 88

Jett v. Dallas Independent School District, 491 U.S. 701 (1989), 167

Jim C. v. United States, 235 F.3d 1079 (8th Cir. 2000), 145

Johnson v. American Airlines, Inc., 745 F.2d 988 (5th Cir. 1984), 136

Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122 (5th Cir. 1969), 101

Johnson v. Mayor of Baltimore, 472 U.S. 353 (1985), 136

Johnson v. Railway Express Agency, 421 U.S. 454 (1975), 97, 166, 168

Johnson v. Ryder Truck Lines, 575 F.2d 471 (4th Cir. 1978), 166

Johnson v. Transportation Agency, 480 U.S. 616 (1987), 16, 55, 58

Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), 166

Jones v. American State Bank, 857 F.2d 494 (8th Cir. 1988), 123

Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 (2004), 168

Judkins v. Beech Aircraft Corp., 745 F.2d 1330 (11th Cir. 1984), 96

Kadas v. MCI Systemhouse Corp., 255 F.3d 359 (7th Cir. 2001), 29

Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011), 88

Katz v. Regents of the University of California, 229 F.3d 831 (9th Cir. 2000), 

140

Kelley v. Airborne Freight Corp., 140 F.3d 335 (1st Cir. 1998), 23

Kendrick v. Penske Transportation Services, Inc., 220 F.3d 1220 (10th Cir. 

2000), 17

Kentucky v. Graham, 473 U.S. 159 (1985), 120

Kentucky Retirement Systems v. EEOC, 554 U.S. 135 (2008), 131

Kerzer v. Kingly Manufacturing, 156 F.3d 396 (2d Cir. 1998), 21

Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), 143–44, 152

Kolstad v. American Dental Association, 527 U.S. 526 (1999), 111-12

Kolstad v. American Dental Association, 139 F.3d 958 (D.C. Cir. 1998), 1112

Korematsu v. United States, 323 U.S. 214 (1944), 81

Kosereis v. Rhode Island, 331 F.3d 207 (1st Cir. 2003), 18

Kovacevich v. Kent State University, 224 F.3d 806 (6th Cir. 2000), 28

Kremer v. Chemical Construction Corp., 456 U.S. 461 (1982), 92, 107

LaChappelle v. Owens-Illinois, Inc., 513 F.2d 286 (5th Cir. 1975), 176

Landgraf v. USI Film Products, 511 U.S. 244 (1994), 112
Table of Cases

193

Lanning v. Southeastern Pennsylvania Transportation Authority, 181 F.3d 478 

(3d Cir. 1999), 49

Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 613 

(2002), 140

Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), 99

Legal Aid Society v. Brennan, 608 F.2d 1319 (9th Cir. 1979), 178

Legault v. aRusso, 842 F. Supp. 1479 (D.N.H. 1994), 49

Levin v. Delta Air Lines, Inc., 730 F.2d 994 (5th Cir. 1984), 70

Lewis v. City of Chicago, 130 S. Ct. 2191 (2010), 98

Liberty Mutual Insurance Co. v. Friedman, 639 F.2d 164 (4th Cir. 1981), 179

Library of Congress v. Shaw, 478 U.S. 310 (1986), 114

Lilly v. City of Beckley, 797 F.2d 191 (4th Cir. 1986), 16

Lindsey v. Am. Cast Iron Pipe Co., 810 F.2d 1094 (11th Cir. 1987), 139

Lissau v. Southern Food Service, Inc., 159 F.3d 177 (4th Cir. 1998), 90

Local No. 93, International Association of Firefighters v. City of Cleveland, 478 

U.S. 501 (1986), 55–56, 63, 127–28

Local 189, United Papermakers & Paperworkers v. United States, 416 F.2d 980 

(5th Cir. 1969), 64

Local 28, Sheet Metal Workers’ International Association v. EEOC, 478 U.S. 

421 (1986), 56–57, 59

Lorance v. AT&T Technologies, Inc., 490 U.S. 900 (1989), 99

Los Angeles Department of Water & Power, City of, v. Manhart, 435 U.S. 702 

(1978), 38, 73–74, 91, 115

Love v. Pullman Co., 404 U.S. 522 (1972), 93

Lowell v. Glidden-Durkee, 529 F. Supp. 17 (N.D. Ill. 1981), 96

Lowery v. Circuit City Stores, Inc., 206 F.3d 431 (4th Cir. 2000), 111

Lowry v. Clark, 843 F. Supp. 228 (E.D. Ky. 1994), 75

Loyd v. Phillips Brothers, 25 F.3d 518 (7th Cir. 1994), 73

Lytle v. Household Manufacturing, Inc., 494 U.S. 545 (1990), 112

MacNamara v. Korean Air Lines, 863 F.2d 1135 (3d Cir. 1988), 81

Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 1985), 144

Marek v. Chesny, 473 U.S. 1 (1985), 124

Marshall v. Westinghouse Electric Corp., 576 F.2d 588 (5th Cir. 1978), 132

Martin v. Wilks, 490 U.S. 755 (1989), 114, 124

Martinez v. UAW, Local 1373, 772 F.2d 348 (7th Cir. 1985), 96

Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976), 129
Major Issues in the Federal Law of Employment Discrimination

194

Mastro v. Potomac Electric Power Co., 447 F.3d 843 (D.C. Cir. 2006), 15

Mathews v. Diaz, 426 U.S. 67 (1976), 170

Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), 

21

McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273 (1976), 15, 166

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), 14–15, 88, 92, 127, 

130

McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995), 27

McKenzie v. Dovala, 242 F.3d 967 (10th Cir. 2001), 149

McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988), 139, 176

Meacham v. Knolls Atomic Power Laboratory, Inc., 128 S. Ct. 2395 (2008), 132

Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5 (1st Cir. 1990), 21

Meiri v. Dacon, 759 F.2d 989 (2d Cir. 1985), 21

Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), 74–76, 147

Merrick v. Farmers Ins. Group, 892 F.2d 1434 (9th Cir. 1990), 21

Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990), 60

Michalski v. Circuit City Stores Inc., 177 F.3d 634 (7th Cir. 1999), 106

Mikula v. Allegheny County, 583 F.3d 181 (3d Cir. 2009), 100

Miller v. Fairchild Industries, Inc., 797 F.2d 727 (9th Cir. 1986), 88

Miller v. Maxwell’s International Inc., 991 F.2d 583 (9th Cir. 1993), 75, 90

Missouri v. Jenkins, 491 U.S. 274 (1989), 125

Mohasco Corp. v. Silver, 447 U.S. 807 (1980), 94

Monroe v. Pape, 365 U.S. 167 (1961), 169

Montes v. Vail Clinic, Inc., 497 F.3d 1160 (10th Cir. 2007), 39

Montgomery v. American Airlines, Inc., 626 F.3d 382 (7th Cir. 2010), 17

Moore v. Devine, 767 F.2d 1541 (11th Cir. 1985), 109

Moore v. Sun Oil Co., 636 F.2d 154 (6th Cir. 1980), 168

Moreno v. Consolidated Rail Corp., 99 F.3d 782 (6th Cir. 1996), 145

Morton v. Mancari, 417 U.S. 535 (1974), 61–62

Murphy v. UPS, Inc., 527 U.S. 516 (1999), 152

NAACP v. Federal Power Commission, 425 U.S. 662 (1976), 181

Nadeau v. Helgemoe, 581 F.2d 275 (1st Cir. 1978), 121

Nagle v. Village of Calumet Park, 554 F.3d 1106 (7th Cir. 2009), 15

Nashville Gas Co. v. Satty, 434 U.S. 136 (1977), 70

National Education Association v. South Carolina, 434 U.S. 1026 (1978), 48
Table of Cases

195

National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), 98

Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968), 120

Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983), 

71

New York City Transit Authority v. Beazer, 440 U.S. 568 (1979), 38, 48, 143

New York Gaslight Club v. Carey, 447 U.S. 54 (1980), 123

Nichols v. Azteca Restaurant Enterprises Inc., 256 F.3d 864 (9th Cir. 2001), 79

North Carolina Department of Transportation v. Crest St. Community Council, 

479 U.S. 6 (1986), 123

North Haven Board of Education v. Bell, 456 U.S. 512 (1982), 180

Northeast Construction Co. v. Romney, 485 F.2d 752 (D.C. Cir. 1973), 178

Northwest Airlines v. Transport Workers Union, 451 U.S. 77 (1981), 116

Occidental Life Insurance Co. v. EEOC, 432 U.S. 355 (1977), 97, 138

O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996), 18

Officers for Justice v. Civil Service Commission, 979 F.2d 721 (9th Cir. 1992), 

49, 58

Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), 79

Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979), 95–96

Oubre v. Entergy Operations, Inc., 522 U.S. 422 (1998), 134

Owens v. City of Independence, 445 U.S. 622 (1980), 171

Parker v. Baltimore & Ohio Railroad, 652 F.2d 1012 (D.C. Cir. 1981), 15

Paroline v. Unisys Corp., 879 F.2d 100 (4th Cir. 1989), 90

Patterson v. American Tobacco Co., 535 F.2d 257 (4th Cir. 1976), 116

Patterson v. McLean Credit Union, 491 U.S. 164 (1989), 167

Patterson v. Newspaper & Mail Deliverers’ Union of New York, 13 F.3d 33 (2d 

Cir. 1993), 128

Pennsylvania v. Delaware Valley Citizens’ Council, 478 U.S. 546 (1986), 126

Pennsylvania State Police v. Suders, 542 U.S. 129 (2004), 77

Pettway v. American Cast Iron Pipe Co., 411 F.2d 998 (5th Cir. 1969), 87-88

PGA Tour Inc. v. Martin, 532 U.S. 661 (2001), 159

Phillip v. Ford Motor Co., 413 F.3d 766, 768 (8th Cir. 2005), 17 

Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 

376 (1973), 89

Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843 (2001), 111
Major Issues in the Federal Law of Employment Discrimination

196

Powell v. Yellow Book USA, Inc., 445 F.3d 1074 (8th Cir. 2006), 90

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), 23–26, 113

Protos v. Volkswagen of America, Inc., 797 F.2d 129 (3d Cir. 1986), 85

Pugh v. Locke, 406 F. Supp. 318 (M.D. Ala. 1976), 66

Pullman-Standard v. Swint, 456 U.S. 273 (1982), 64

Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (E.D. Va. 1968), 64

Quern v. Jordan, 440 U.S. 332 (1979), 170

Quinn v. Green Tree Credit Corp., 159 F.3d 759 (2d Cir. 1998), 78

Raiser v. O’Shaughnessy, 830 F. Supp. 1134 (N.D. Ill. 1993), 75

Ramsey v. City of Denver, 907 F.2d 1004 (10th Cir. 1990), 16

Randolph v. Rodgers, 253 F.3d 342 (8th Cir. 2001), 150

Raytheon Co. v. Hernandez, 540 U.S. 44 (2003), 148

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), 21–22

Regents of the University of California v. Bakke, 438 U.S. 265 (1978), 81

Rent-A-Center West Inc. v. Jackson, 130 S. Ct. 2772 (2010), 105

Rhodes v. Stewart, 488 U.S. 1 (1994), 121

Ricci v. DeStefano, 129 S. Ct. 2658 (2009), 16, 36, 38, 46, 50–52, 58

Rice v. Cayetano, 528 U.S. 495 (2000), 62

Richmond, City of, v. J. A. Croson Co., 488 U.S. 469 (1989), 51-50

Rivers v. Roadway Express, Inc., 511 U.S. 298 (1994), 167

Riverside, City of, v. Rivera, 477 U.S. 561 (1986), 126-27

Roe v. Ogden, 253 F.3d 1225 (10th Cir. 2001), 150

Roper v. Department of the Army, 832 F.2d 247 (2d Cir. 1987), 109

Rosenfeld v. Southern Pacific Co., 444 F.2d 1219 (9th Cir. 1971), 69

Rutherford v. City of Cleveland, 137 F.3d 905 (6th Cir. 1998), 128

Saint Francis College v. Al-Khazraji, 481 U.S. 604 (1987), 166

Saint Louis, City of, v. Prapotnik, 485 U.S. 112 (1988), 171

Saint Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993), 19–20, 22

Salazar v. Washington Metropolitan Area Transit Authority, 401 F.3d 504 (D.C. 

Cir. 2005), 17

Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970), 101

Scales v. Slater, 181 F.3d 703 (5th Cir. 1999), 17

Scheuer v. Rhodes, 416 U.S. 232 (1974), 171
Table of Cases

197

School Board v. Arline, 480 U.S. 273 (1987), 150-51

Schultz v. Wheaton Glass Co., 421 F.2d 259 (3d Cir. 1970), 172, 174

Setser v. Novack Inv. Co., 638 F.2d 1137 (8th Cir. 1981), 168

Shager v. Upjohn Co., 913 F.2d 398 (7th Cir. 1990), 19

Sheppard v. Riverview Nursing Center Inc., 88 F.3d 1332 (4th Cir. 1996), 122

Sheridan v. E.I. DuPont de Nemours, 100 F.3d 1061 (3d Cir. 1996), 21

Simmons v. Al Smith Buick Co., 841 F. Supp. 168 (E.D.N.C. 1993), 137

Simmons v. New York City Transit Authority, 575 F.3d 170 (2d Cir. 2009), 125

Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), 79

Skinner v. Maritz, Inc., 253 F.3d 337 (8th Cir. 2001), 167

Smith v. Borough of Wilkinsburg, 147 F.3d 272 (3d Cir. 1998), 22

Smith v. City of Jackson, 544 U.S. 228 (2005), 131

Sorbo v. United Parcel Service, 432 F.3d 1169 (10th Cir. 2005), 17

Southeastern Community College v. Davis, 442 U.S. 397 (1979), 157

Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011), 19

Steele v. Louisville & Nashville Railroad, 323 U.S. 192 (1944), 181

Stevens v. U.S. Department of the Treasury, 500 U.S. 1 (1991), 139

Stolt-Nielsen S.A. v. AnimalFeeds International Corp., 130 S. Ct. 1758 (2010), 

106

Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176 (1982), 81

Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), 151–55

Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), 15, 19

Taitt v. Chemical Bank, 849 F.2d 775 (2d Cir. 1988), 88

Takahashi v. Fish & Game Commission, 334 U.S. 410 (1948), 160

Taylor v. Principal Financial Group, 93 F.3d 155 (5th Cir. 1996), 163

Taylor v. Virginia Union University, 193 F.3d 219 (4th Cir. 1999), 21

Terrell v. United States Pipe & Foundry Co., 644 F.2d 1112 (5th Cir. 1981), 65

Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), 15, 

18, 25, 158

Texas State Teachers Association v. Garland Independent School District, 489 

U.S. 782 (1989), 121

Thomas v. Denny’s, Inc., 111 F.3d 1506 (11th Cir. 1997), 169

Thompson v. North American Stainless, LP, 131 S. Ct. 863 (2011), 88

Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995), 90
Major Issues in the Federal Law of Employment Discrimination

198

Tony & Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (1985), 

175

Toyota Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), 154

Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), 85

Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985), 16, 135, 138–39

United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977), 65, 97–99

United Air Lines, Inc. v. McMann, 434 U.S. 192 (1977), 133

United Brotherhood of Carpenters, Local 610 v. Scott, 463 U.S. 825 (1983), 172

United States v. Brennan, Nos. 08-5171-cv (L), 08-5172-cv (XAP), 08-5375-cv 

(XAP), 08-5149-cv (CON), 08-4639-cv (CON), 2011 WL 1679850 (2d Cir. 

May 5; as corrected June 2, 2011), 18

United States v. Georgia Power Co., 634 F.2d 929 (5th Cir. 1981), 62

United States v. Gregory, 818 F.2d 1114 (4th Cir. 1987), 67

United States v. Paradise, 480 U.S. 149 (1987), 59

United States v. United States Steel Corp., 520 F.2d 1043 (5th Cir. 1975), 118

United States v. Virginia, 518 U.S. 515 (1996), 170

United States Department of Transportation v. Paralyzed Veterans, 477 U.S. 597 

(1986), 145

United States EEOC v. Illinois State Tollway Authority, 800 F.2d 656 (7th Cir. 

1986), 93

United States Postal Service Board of Governors v. Aikens, 460 U.S. 711 

(1983), 19

United Steelworkers v. Weber, 443 U.S. 193 (1979), 50, 54–55, 58–60

University of Tennessee v. Elliott, 478 U.S. 788 (1986), 92, 127

U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002), 160, 164

Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (5th Cir. 1976), 135

Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708 (2d Cir. 1996), 19

Vande Zande v. Wisconsin Department of Administration, 44 F.3d 538 (7th Cir. 

1995), 161–62

Varner v. Illinois State University, 226 F.3d 927 (7th Cir. 2000), 140

Walden v. Georgia-Pacific Corp., 126 F.3d 506 (3d Cir. 1997), 27

Wal-Mart Stores Inc. v. Dukes, 131 S. Ct. 2541 (2011), 35, 42, 103

Walters v. Metropolitan Educational Enterprises, Inc., 519 U.S. 202 (1997), 90

Walton v. Bisco Industries, Inc., 119 F.3d 368 (5th Cir. 1997), 21
Table of Cases

199

Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), 36-37, 39–42, 50-51, 

131

Washington v. Davis, 426 U.S. 229 (1976), 38, 46–47, 170

Washington, County of, v. Gunther, 452 U.S. 161 (1981), 72–73

Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988), 39, 44, 51

Webb v. Board of Education, 471 U.S. 234 (1985), 123

Weeks v. Southern Bell Telephone & Telegraph Co., 408 F.2d 228 (5th Cir. 

1969), 67

Weihaupt v. American Medical Association, 874 F.2d 419 (7th Cir. 1989), 21

West v. Gibson, 527 U.S. 212 (1999), 109

West Virginia University Hospital, Inc. v. Casey, 499 U.S. 83 (1991), 113

Western Air Lines, Inc. v. Criswell, 472 U.S. 400 (1985), 132, 135

Wexler v. White’s Fine Furniture Inc., 317 F.3d 564 (6th Cir. 2003), 23

White v. Carolina Paperboard Corp., 564 F.2d 1073 (4th Cir. 1977), 116

White v. York International Corp., 45 F.3d 357 (10th Cir. 1995), 164

Williams v. Banning, 72 F.3d 552 (7th Cir. 1995), 90

Williams v. Dallas Area Rapid Transit, 242 F.3d 315 (5th Cir. 2001), 140

Williams v. Ford Motor Co., 187 F.3d 533 (6th Cir. 1999), 49

Willingham v. Macon Telegraph Publishing Co., 507 F.2d 1084 (5th Cir. 1975), 

68

Willis v. Conopco, Inc., 108 F.3d 282 (11th Cir. 1997), 164

Wilson v. Garcia, 471 U.S. 261 (1985), 171

W.R. Grace & Co. v. Local Union 759, 461 U.S. 757 (1983), 127

Wright v. Murray Guard, Inc., 455 F.3d 702 (6th Cir. 2006), 21

Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1998), 106

Wygant v. Jackson Board of Education, 476 U.S. 267 (1986), 51–52, 59

Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820 (1990), 93

Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982), 97

Table of Cases

(listed by court)

Supreme Court

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), 60–61

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), 36, 38, 41, 46–47, 66, 

114–15, 147

Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999), 152

Alden v. Maine, 527 U.S. 706 (1999), 140

Alexander v. Choate, 469 U.S. 287 (1985), 144

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), 104, 181

Alexander v. Sandoval, 532 U.S. 275 (2001), 180

Ambach v. Norwick, 441 U.S. 68 (1979), 170

American Tobacco Co. v. Patterson, 456 U.S. 63 (1982), 64

Anderson v. Bessemer City, 470 U.S. 564 (1985), 19

Ansonia Board of Education v. Philbrook, 479 U.S. 60 (1986), 85

Arbaugh v. Y & H Corp., 546 U.S. 500 (2006), 91

Arizona Governing Committee v. Norris, 463 U.S. 1073 (1983), 69, 74, 91, 115, 

147

Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006), 19

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), 19, 96

Astoria Federal Savings & Loan Association v. Solimino, 501 U.S. 104 (1991), 

92

Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985), 145

AT&T Corp. v. Hulteen, 129 S. Ct. 1962 (2009), 100

AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011) 106

Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187 (1991), 67–70

Bazemore v. Friday, 478 U.S. 385 (1986), 32–33, 99, 102

Baldwin Community Welcome Center v. Brown, 466 U.S. 147 (1984), 96

Barnes v. Gorman, 536 U.S. 181 (2002), 146, 180

Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959), 112

Bernal v. Fainter, 467 U.S. 216 (1984), 170

Blanchard v. Bergeron, 489 U.S. 87 (1989), 126

Blum v. Stenson, 465 U.S. 886 (1984), 126

Board of Trustees v. Sweeney, 439 U.S. 24 (1978), 15, 18
Major Issues in the Federal Law of Employment Discrimination

202

Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356 (2001), 

152

Boerne, City of, v. Flores, 521 U.S. 507 (1997), 86

Bragdon v. Abbott, 524 U.S. 624 (1998), 151

Brown v. General Services Administration, 425 U.S. 820 (1976), 109

Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health 

& Human Resources, 532 U.S. 598 (2001), 121–22

Burlington, City of, v. Dague, 505 U.S. 557 (1992), 126

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), 76

Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), 88

Burnett v. Grattan, 468 U.S. 42 (1984), 168

California Brewers Association v. Bryant, 444 U.S. 598 (1980), 64

California Federal Savings & Loan Association v. Guerra, 479 U.S. 272 (1987), 

71

Cannon v. University of Chicago, 441 U.S. 677 (1979), 180

CBOCS V. Humphries, 128 S. Ct. 1951 (2008), 166

Celotex Corp. v. Catrett, 477 U.S. 317 (1986), 21

Chandler v. Roudebush, 425 U.S. 840 (1976), 109

Chardon v. Fernandez, 454 U.S. 6 (1981), 169

Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002), 148

Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), 120, 122

Chrysler Corp. v. Brown, 441 U.S. 281 (1979), 179

Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001), 105

Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003), 90

Clark County School District v. Breeden, 532 U.S. 268 (2001), 79-80

Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999), 163

Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974), 69

Commissioner v. Banks, 543 U.S. 426 (2005), 118

Commissioner v. Burke, 504 U.S. 229 (1992), 116

Commissioner v. Schleier, 515 U.S. 323 (1995), 116

Connecticut v. Teal, 457 U.S. 440 (1982), 28, 42

Consolidated Rail Corp. v. Darrone, 465 U.S. 624 (1984), 143, 145

Cooper v. Federal Reserve Bank, 467 U.S. 867 (1984), 102

Corning Glass Works v. Brennan, 417 U.S. 188 (1974), 72, 173

Crawford v. Metropolitan Government of Nashville & Davidson County, 129 S. 

Ct. 846 (2009), 86
Table of Cases by Court

203

Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437 (1987), 113

Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983), 97

Curtis v. Loether, 415 U.S. 189 (1974), 168

Dairy Queen v. Wood, 369 U.S. 469 (1962), 112

Davis v. Passman, 442 U.S. 228 (1979), 9, 109

Delaware State College v. Ricks, 449 U.S. 250 (1980), 97

Delta Air Lines v. August, 450 U.S. 346 (1981), 124

Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), 26

Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470 (2006), 166

Dothard v. Rawlinson, 433 U.S. 321 (1977), 38, 47, 66–67, 135

East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395 (1977), 101

Edelman v. Lynchburg College, 535 U.S. 106 (2002), 96

EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991), 91

EEOC v. Associated Dry Goods Corp., 449 U.S. 590 (1981), 101

EEOC v. Commercial Office Products Co., 486 U.S. 107 (1988), 95

EEOC v. Shell Oil Co., 466 U.S. 54 (1984), 107

EEOC v. Waffle House, Inc., 534 U.S. 279 (2002), 106

EEOC v. Wyoming, 460 U.S. 226 (1983), 129, 140

Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229 (1976), 97

Employment Division, Department of Human Resources of Oregon v. Smith, 

494 U.S. 872 (1990), 85

Emporium Capwell Co. v. Western Addition Community Organization, 420 

U.S. 50 (1975), 87

Espinoza v. Farah Manufacturing Co., 414 U.S. 86 (1973), 82

Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985), 85

Evans v. Jeff D., 475 U.S. 717 (1986), 123

Faragher v. City of Boca Raton, 524 U.S. 775 (1998), 76, 78, 80

Farrar v. Hobby, 506 U.S. 103 (1992), 121

Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008), 96

Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561 (1984), 56

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), 120, 140

Florida v. Long, 487 U.S. 223 (1988), 74

Folie v. Connelie, 435 U.S. 291 (1978), 170

Ford Motor Co. v. EEOC, 458 U.S. 219 (1982), 115

Ford Motor Co. v. Huffman, 345 U.S. 330 (1953), 181

Franklin v. Gwinnett County Public School, 503 U.S. 60 (1992), 180
Major Issues in the Federal Law of Employment Discrimination

204

Franks v. Bowman Transportation Co., 424 U.S. 747 (1976), 65, 115, 119

Fullilove v. Klutznick, 448 U.S. 448 (1980), 60

Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978), 15, 18, 25

14 Penn Plaza LLC v. Pyett, 129 S. Ct. 1456 (2009), 105

Geduldig v. Aiello, 417 U.S. 484 (1974), 69-70

General Building Contractors Association v. Pennsylvania, 458 U.S. 375 (1982), 

166

General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581 (2004), 129

General Electric Co. v. Gilbert, 429 U.S. 125 (1976), 38, 70

General Telephone Co. v. EEOC, 446 U.S. 318 (1980), 102

General Telephone Co. v. Falcon, 457 U.S. 147 (1982), 102

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), 105

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987), 13, 168

Great American Federal Savings & Loan Association v. Novotny, 442 U.S. 366 

(1979), 172

Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003), 105

Griffin v. Breckenridge, 403 U.S. 88 (1971), 171

Griggs v. Duke Power Co., 401 U.S. 424 (1971), 36–37, 38–39, 41, 44, 81, 147

Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009), 28, 130, 132

Grove City College v. Bell, 465 U.S. 555 (1984), 145, 180

Grutter v. Bollinger, 539 U.S. 306 (2003), 61

Guardians Association v. Civil Service Commission, 463 U.S. 582 (1983), 180

Hafer v. Melo, 502 U.S. 21 (1991), 171

Hampton v. Mow Sun Wong, 426 U.S. 88 (1976), 170

Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), 78–79

Hazelwood School District v. United States, 433 U.S. 299 (1977), 30–34, 41–43

Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993), 130

Hensley v. Eckerhart, 461 U.S. 424 (1983), 24, 121, 125–26

Hewitt v. Helms, 482 U.S. 755 (1987), 121

Hirabayashi v. United States, 320 U.S. 81 (1943), 81

Hishon v. King & Spaulding, 467 U.S. 69 (1984), 91

Hoffman-LaRoche Inc. v. Sperling, 493 U.S. 165 (1989), 176

Hutto v. Finney, 437 U.S. 678 (1978), 120

Independent Federation of Flight Attendants v. Zipes, 491 U.S. 754 (1989), 120

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

29–30, 33–34, 64, 114, 118–19
Table of Cases by Court

205

International Union v. Johnson Controls, Inc., 499 U.S. 187 (1991), 67–70, 135, 

170, 187

Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990), 109

Jett v. Dallas Independent School District, 491 U.S. 701 (1989), 167

Johnson v. Mayor of Baltimore, 472 U.S. 353 (1985), 136

Johnson v. Railway Express Agency, 421 U.S. 454 (1975), 97, 166, 168

Johnson v. Transportation Agency, 480 U.S. 616 (1987), 16, 55, 58

Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), 166

Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 (2004), 168

Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011), 88

Kentucky v. Graham, 473 U.S. 159 (1985), 120

Kentucky Retirement System v. EEOC, 554 U.S. 135 (2008), 131

Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), 143–44, 152

Kolstad v. American Dental Association, 527 U.S. 526 (1999), 111–12

Korematsu v. United States, 323 U.S. 214 (1944), 81

Kremer v. Chemical Construction Corp., 456 U.S. 461 (1982), 92, 107

Landgraf v. USI Film Products, 511 U.S. 244 (1994), 112

Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 613 

(2002), 140

Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), 99

Lewis v. City of Chicago, 130 S. Ct. 2191 (2010), 98

Library of Congress v. Shaw, 478 U.S. 310 (1986), 114

Local No. 93, International Association of Firefighters v. City of Cleveland, 478 

U.S. 501 (1986), 55–56, 63, 127–28

Local 28, Sheet Metal Workers’ International Association v. EEOC, 478 U.S. 

421 (1986), 56–57, 59

Lorance v. AT&T Technologies, Inc., 490 U.S. 900 (1989), 99

Los Angeles Department of Water & Power, City of, v. Manhart, 435 U.S. 702 

(1978), 38, 73–74, 91, 115

Love v. Pullman Co., 404 U.S. 522 (1972), 93

Lytle v. Household Manufacturing, Inc., 494 U.S. 545 (1990), 112

Marek v. Chesny, 473 U.S. 1 (1985), 124

Martin v. Wilks, 490 U.S. 755 (1989), 114, 124

Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976), 129

Mathews v. Diaz, 426 U.S. 67 (1976), 170

Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), 

21
Major Issues in the Federal Law of Employment Discrimination

206

McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273 (1976), 15, 166

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), 14–15, 88, 92, 127, 

130

McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995), 27

McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988), 139, 176

Meacham v. Knolls Atomic Power Laboratory, Inc., 128 S. Ct. 2395 (2008), 132

Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), 74–76, 147

Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990), 60

Missouri v. Jenkins, 491 U.S. 274 (1989), 125

Mohasco Corp. v. Silver, 447 U.S. 807 (1980), 94

Monroe v. Pape, 365 U.S. 167 (1961), 169

Morton v. Mancari, 417 U.S. 535 (1974), 61–62

Murphy v. UPS, Inc., 527 U.S. 516 (1999), 152

NAACP v. Federal Power Commission, 425 U.S. 662 (1976), 181

Nashville Gas Co. v. Satty, 434 U.S. 136 (1977), 70

National Education Association v. South Carolina, 434 U.S. 1026 (1978), 48

National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), 98

New York City Transit Authority v. Beazer, 440 U.S. 568 (1979), 38, 48, 143

New York Gaslight Club v. Carey, 447 U.S. 54 (1980), 123

Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968), 120

Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983), 

71

North Carolina Department of Transportation v. Crest St. Community Council, 

479 U.S. 6 (1986), 123

North Haven Board of Education v. Bell, 456 U.S. 512 (1982), 180

Northwest Airlines v. Transport Workers Union, 451 U.S. 77 (1981), 116

Occidental Life Insurance Co. v. EEOC, 432 U.S. 355 (1977), 97, 138

O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996), 18

Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), 79

Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979), 95–96

Oubre v. Entergy Operations, Inc., 522 U.S. 422 (1998), 134

Owens v. City of Independence, 445 U.S. 622 (1980), 171

Patterson v. McLean Credit Union, 491 U.S. 164 (1989), 167

Pennsylvania v. Delaware Valley Citizens’ Council, 478 U.S. 546 (1986), 126

Pennsylvania State Police v. Suders, 542 U.S. 129 (2004), 77

PGA Tour Inc. v. Martin, 532 U.S. 661 (2001), 159
Table of Cases by Court

207

Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 

376 (1973), 89

Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843 (2001), 111

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), 23–26, 113

Pullman-Standard v. Swint, 456 U.S. 273 (1982), 64

Quern v. Jordan, 440 U.S. 332 (1979), 170

Raytheon Co. v. Hernandez, 540 U.S. 44 (2003), 148

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), 21-22

Regents of the University of California v. Bakke, 438 U.S. 265 (1978), 81

Rent-A-Center West Inc. v. Jackson, 130 S. Ct. 2772 (2010), 105

Rhodes v. Stewart, 488 U.S. 1 (1994), 121

Ricci v. DeStefano, 129 S. Ct. 2658 (2009), 16, 36, 38, 46, 50–52, 58

Rice v. Cayetano, 528 U.S. 495 (2000), 62

Richmond, City of, v. J. A. Croson Co., 488 U.S. 469 (1989), 51–50

Rivers v. Roadway Express, Inc., 511 U.S. 298 (1994), 167

Riverside, City of, v. Rivera, 477 U.S. 561 (1986), 126–27

Saint Francis College v. Al-Khazraji, 481 U.S. 604 (1987), 166

Saint Louis, City of, v. Prapotnik, 485 U.S. 112 (1988), 171

Saint Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993), 19–20, 22

Scheuer v. Rhodes, 416 U.S. 232 (1974), 171

School Board v. Arline, 480 U.S. 273 (1987), 150–51

Smith v. City of Jackson, 544 U.S. 228 (2005), 131

Southeastern Community College v. Davis, 442 U.S. 397 (1979), 157

Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011), 19

Steele v. Louisville & Nashville Railroad, 323 U.S. 192 (1944), 181

Stevens v. U.S. Department of the Treasury, 500 U.S. 1 (1991), 139

Stolt-Nielsen S.A. v. AnimalFeeds International Corp., 130 S. Ct. 1758 (2010), 

106

Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176 (1982), 81

Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), 151–55

Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), 15, 19

Takahashi v. Fish & Game Commission, 334 U.S. 410 (1948), 160

Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), 15, 

18, 25, 158

Texas State Teachers Association v. Garland Independent School District, 489 

U.S. 782 (1989), 121
Major Issues in the Federal Law of Employment Discrimination

208

Thompson v. North American Stainless, LP, 131 S. Ct. 863 (2011), 88

Tony & Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (1985), 

175

Toyota Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), 154

Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), 85

Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985), 16, 135, 138–39

United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977), 65, 97–99

United Air Lines, Inc. v. McMann, 434 U.S. 192 (1977), 133

United Brotherhood of Carpenters, Local 610 v. Scott, 463 U.S. 825 (1983), 172

United States v. Paradise, 480 U.S. 149 (1987), 59

United States v. Virginia, 518 U.S. 515 (1996), 170

United States Department of Transportation v. Paralyzed Veterans, 477 U.S. 597 

(1986), 145

United States Postal Service Board of Governors v. Aikens, 460 U.S. 711 

(1983), 19

United Steelworkers v. Weber, 443 U.S. 193 (1979), 50, 54–55, 58–60

University of Tennessee v. Elliott, 478 U.S. 788 (1986), 92, 127

U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002), 160, 164

Wal-Mart Stores Inc. v. Dukes, 131 S. Ct. 2541 (2011), 35, 42, 103

Walters v. Metropolitan Educational Enterprises, Inc., 519 U.S. 202 (1997), 90

Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), 36-37, 39–42, 50–51, 

131

Washington v. Davis, 426 U.S. 229 (1976), 38, 46–47, 170

Washington, County of, v. Gunther, 452 U.S. 161 (1981), 72–73

Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988), 39, 44, 51

Webb v. Board of Education, 471 U.S. 234 (1985), 123

West v. Gibson, 527 U.S. 212 (1999), 109

West Virginia University Hospital, Inc. v. Casey, 499 U.S. 83 (1991), 113

Western Air Lines, Inc. v. Criswell, 472 U.S. 400 (1985), 132, 135

Wilson v. Garcia, 471 U.S. 261 (1985), 171

W.R. Grace & Co. v. Local Union 759, 461 U.S. 757 (1983), 127

Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1998), 106

Wygant v. Jackson Board of Education, 476 U.S. 267 (1986), 51–52, 59

Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820 (1990), 93

Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982), 97
Table of Cases by Court

209

First Circuit

Fernandes v. Costa Brothers Masonry, Inc., 199 F.3d 572 (1st Cir. 1999), 26

Higgins v. New Balance Athletic Shoes, Inc., 194 F.3d 252 (1st Cir. 1999), 79

Hochstadt v. Worcester Foundation for Experimental Biology, 545 F.2d 222 (1st 

Cir. 1976), 87

Kelley v. Airborne Freight Corp., 140 F.3d 335 (1st Cir. 1998), 23

Kosereis v. Rhode Island, 331 F.3d 207 (1st Cir. 2003), 18

Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5 (1st Cir. 1990), 21

Nadeau v. Helgemoe, 581 F.2d 275 (1st Cir. 1978), 121

Second Circuit

Air Line Pilots Association v. Trans World Airlines, Inc., 713 F.2d 940 (2d Cir. 

1983), 138

Anderson v. Conboy, 156 F.3d 167 (2d Cir. 1998), 166

Borkowski v. Valley Central School District, 63 F.3d 131 (2d Cir. 1995), 161–

62

Briscoe v. City of New Haven, 654 F.3d 200 (2d Cir. 2011).

Cabrera v. Jakabovitz, 24 F.3d 372 (2d Cir. 1994), 22

Carrion v. Yeshiva University, 535 F.2d 722 (2d Cir. 1976), 120

Forts v. Ward, 621 F.2d 1210 (2d Cir. 1980), 67

Guardians Association v. Civil Service Commission, 630 F.2d 79 (2d Cir. 1980), 

48

Guilino v. New York State Education Department, 460 F3d. 361 (2d Cir. 2006), 

39

Hagelthorn v. Kennecott Corp., 710 F.2d 76 (2d Cir. 1983), 22

Kerzer v. Kingly Manufacturing, 156 F.3d 396 (2d Cir. 1998), 21

Meiri v. Dacon, 759 F.2d 989 (2d Cir. 1985), 21

Patterson v. Newspaper & Mail Deliverers’ Union of New York, 13 F.3d 33 (2d 

Cir. 1993), 128

Quinn v. Green Tree Credit Corp., 159 F.3d 759 (2d Cir. 1998), 78

Roper v. Department of the Army, 832 F.2d 247 (2d Cir. 1987), 109

Simmons v. New York City Transit Authority, 575 F.3d 170 (2d Cir. 2009), 125

Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), 79

Taitt v. Chemical Bank, 849 F.2d 775 (2d Cir. 1988), 88

Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995), 90
Major Issues in the Federal Law of Employment Discrimination

210

United States v. Brennan, Nos. 08-5171-cv (L), 08-5172-cv (XAP), 08-5375-cv 

(XAP), 08-5149-cv (CON), 08-4639-cv (CON), 2011 WL 1679850 (2d Cir. 

May 5; as corrected June 2, 2011), 18

Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708 (2d Cir. 1996), 19

Third Circuit

Contractors Association v. Secretary of Labor, 442 F.2d 159 (3d Cir. 1971), 178

Dillon v. Coles, 746 F.2d 998 (3d Cir. 1984), 116

Dreyer v. Arco Chemical Co., 801 F.2d 651 (3d Cir. 1986), 138

Erie County Retirees Association v. County of Erie, 220 F.3d 193 (3d Cir. 

2000), 134

Eshelman v. Agere Systems, Inc., 554 F.3d 426 (3d Cir. 2009), 117

Hicks v. ABT Associates, Inc., 572 F.2d 960 (3d Cir. 1978), 87

Jalil v. Avdel Corp., 873 F.2d 701 (3d Cir. 1989), 88

Lanning v. Southeastern Pennsylvania Transportation Authority, 181 F.3d 478 

(3d Cir. 1999), 49

MacNamara v. Korean Air Lines, 863 F.2d 1135 (3d Cir. 1988), 81

Mikula v. Allegheny County, 583 F.3d 181 (3d Cir. 2009), 100

Protos v. Volkswagen of America, Inc., 797 F.2d 129 (3d Cir. 1986), 85

Schultz v. Wheaton Glass Co., 421 F.2d 259 (3d Cir. 1970), 172, 174

Sheridan v. E.I. DuPont de Nemours, 100 F.3d 1061 (3d Cir. 1996), 21

Smith v. Borough of Wilkinsburg, 147 F.3d 272 (3d Cir. 1998), 22

Walden v. Georgia-Pacific Corp., 126 F.3d 506 (3d Cir. 1997), 27

Fourth Circuit

Bradford v. Rockwell Semiconductor Inc., 238 F.3d 549 (4th Cir. 2001), 106

Brinn v. Tidewater Transportation District Commission, 242 F.3d 227 (4th Cir. 

2001), 149

Chris v. Tenet, 221 F.3d 648 (4th Cir. 2000), 123

Coleman v. Maryland Court of Appeals, 626 F.3d 187 (4th Cir. 2010), 97

Duane v. GEICO, 37 F.3d 1036 (4th Cir. 1994), 166

EEOC v. Raymond Metal Products Co., 530 F.2d 590 (4th Cir. 1976), 107

Hill v. Lockheed Martin Logistics Management, Inc., 354 F.3d 277 (4th Cir. 

2004), 17–18

Johnson v. Ryder Truck Lines, 575 F.2d 471 (4th Cir. 1978), 166

Liberty Mutual Insurance Co. v. Friedman, 639 F.2d 164 (4th Cir. 1981), 179

Lilly v. City of Beckley, 797 F.2d 191 (4th Cir. 1986), 16
Table of Cases by Court

211

Lissau v. Southern Food Service, Inc., 159 F.3d 177 (4th Cir. 1998), 90

Lowery v. Circuit City Stores, Inc., 206 F.3d 431 (4th Cir. 2000), 111

Paroline v. Unisys Corp., 879 F.2d 100 (4th Cir. 1989), 90

Patterson v. American Tobacco Co., 535 F.2d 257 (4th Cir. 1976), 116

Sheppard v. Riverview Nursing Center Inc., 88 F.3d 1332 (4th Cir. 1996), 122

Taylor v. Virginia Union University, 193 F.3d 219 (4th Cir. 1999), 21

United States v. Gregory, 818 F.2d 1114 (4th Cir. 1987), 67

White v. Carolina Paperboard Corp., 564 F.2d 1073 (4th Cir. 1977), 116

Fifth Circuit

Amburgey v. Corhart, 936 F.2d 805 (5th Cir. 1991), 131

Bhandari v. First National Bank of Commerce, 887 F.2d 609 (5th Cir. 1989), 

166

Chaline v. KCOH, Inc., 693 F.2d 477 (5th Cir. 1982), 15

Diaz v. Pan American World Airways, Inc., 442 F.2d 385 (5th Cir. 1971), 67

EEOC v. Exxon Corp., 203 F.3d 871 (5th Cir. 2000), 148

EEOC v. Mississippi College, 626 F.2d 477 (5th Cir. 1980), 84

EEOC v. Southwestern Baptist Theological Seminary, 651 F.2d 277 (5th Cir. 

1981), 84

Evans v. City of Bishop, 238 F.3d 586 (5th Cir. 2001), 140

Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980), 83

Grant v. Lone Star Co., 21 F.3d 649 (5th Cir. 1994), 90

Indest v. Freeman Decorating, Inc., 164 F.3d 258 (5th Cir. 1999), 76

Johnson v. American Airlines, Inc., 745 F.2d 988 (5th Cir. 1984), 136

Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122 (5th Cir. 1969), 101

LaChappelle v. Owens-Illinois, Inc., 513 F.2d 286 (5th Cir. 1975), 176

Levin v. Delta Air Lines, Inc., 730 F.2d 994 (5th Cir. 1984), 70

Local 189, United Papermakers & Paperworkers v. United States, 416 F.2d 980 

(5th Cir. 1969), 64

Marshall v. Westinghouse Electric Corp., 576 F.2d 588 (5th Cir. 1978), 132

Pettway v. American Cast Iron Pipe Co., 411 F.2d 998 (5th Cir. 1969), 87–88

Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970), 101

Scales v. Slater, 181 F.3d 703 (5th Cir. 1999), 17

Taylor v. Principal Financial Group, Inc., 93 F.3d 155 (5th Cir. 1996), 163

Terrell v. United States Pipe & Foundry Co., 644 F.2d 1112 (5th Cir. 1981), 65

United States v. Georgia Power Co., 634 F.2d 929 (5th Cir. 1981), 62
Major Issues in the Federal Law of Employment Discrimination

212

United States v. United States Steel Corp., 520 F.2d 1043 (5th Cir. 1975), 118

Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (5th Cir. 1976), 135

Walton v. Bisco Industries, Inc., 119 F.3d 368 (5th Cir. 1997), 21

Weeks v. Southern Bell Telephone & Telegraph Co., 408 F.2d 228 (5th Cir. 

1969), 67

Williams v. Dallas Area Rapid Transit, 242 F.3d 315 (5th Cir. 2001), 140

Willingham v. Macon Telegraph Publishing Co., 507 F.2d 1084 (5th Cir. 1975), 

68

Sixth Circuit

Clay v. United Parcel Service, Inc., 501 F.3d 695 (6th Cir. 2007), 17

Detroit Police Officers Association v. Young, 989 F.2d 225 (6th Cir. 1993), 128

Hall v. U.S. Postal Service, 857 F.2d 1073 (6th Cir. 1988), 144

Kovacevich v. Kent State University, 224 F.3d 806 (6th Cir. 2000), 28

Moore v. Sun Oil Co., 636 F.2d 154 (6th Cir. 1980), 168

Moreno v. Consolidated Rail Corp., 99 F.3d 782 (6th Cir. 1996), 145

Rutherford v. City of Cleveland, 137 F.3d 905 (6th Cir. 1998), 128

Wexler v. White’s Fine Furniture Inc., 317 F.3d 564 (6th Cir. 2003), 23

Williams v. Ford Motor Co., 187 F.3d 533 (6th Cir. 1999), 49

Wright v. Murray Guard, Inc., 455 F.3d 702 (6th Cir. 2006), 21

Seventh Circuit

Achor v. Riverside Golf Club, 117 F.3d 339 (7th Cir. 1997), 22

Anderson v. Baxter Healthcare Corp., 13 F.3d 1120 (7th Cir. 1994), 131

Berg v. La Crosse Cooler Co., 612 F.2d 1041 (7th Cir. 1980), 87

Bultemeyer v. Fort Wayne Community School, 100 F.3d 1281 (7th Cir. 1996), 

163

D’Amato v. Wisconsin Gas Co., 760 F.2d 1474 (7th Cir. 1985), 143

Dormeyer v. Comerica Bank-Illinois, 223 F.3d 579 (7th Cir. 2000), 71

Groesch v. City of Springfield, 635 F.3d 1020 (7th Cir. 2011), 100

Holman v. Indiana, 211 F.3d 399 (7th Cir. 2000), 79

Indurante v. Local 705, International Brotherhood of Teamsters, 160 F.3d 364 

(7th Cir. 1998), 27

Kadas v. MCI Systemhouse Corp., 255 F.3d 359 (7th Cir. 2001), 29

Loyd v. Phillips Brothers, 25 F.3d 518 (7th Cir. 1994), 73

Martinez v. UAW, Local 1373, 772 F.2d 348 (7th Cir. 1985), 96
Table of Cases by Court

213

Michalski v. Circuit City Stores Inc., 177 F.3d 634 (7th Cir. 1999), 106

Montgomery v. American Airlines, Inc., 626 F.3d 382 (7th Cir. 2010), 17

Nagle v. Village of Calumet Park, 554 F.3d 1106 (7th Cir. 2009), 15

Shager v. Upjohn Co., 913 F.2d 398 (7th Cir. 1990), 19

United States EEOC v. Illinois State Tollway Authority, 800 F.2d 656 (7th Cir. 

1986), 93

Vande Zande v. Wisconsin Department of Administration, 44 F.3d 538 (7th Cir. 

1995), 161–62

Varner v. Illinois State University, 226 F.3d 927 (7th Cir. 2000), 140

Weihaupt v. American Medical Association, 874 F.2d 419 (7th Cir. 1989), 21

Williams v. Banning, 72 F.3d 552 (7th Cir. 1995), 90

Eighth Circuit

Bradley v. Pizzaco of Nebraska, Inc., 7 F.3d 795 (8th Cir. 1993), 49

Brotherhood of Midwest Guardians Inc. v. City of Omaha, 9 F.3d 677 (8th Cir. 

1993), 128

Cramer v. McDonnell Douglas Corp., 120 F.3d 874 (8th Cir. 1997), 131

Gardner v. Morris, 752 F.2d 1271 (8th Cir. 1985), 144

Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004), 16

Jim C. v. United States, 235 F.3d 1079 (8th Cir. 2000), 145

Jones v. American State Bank, 857 F.2d 494 (8th Cir. 1988), 123

Phillip v. Ford Motor Co., 413 F.3d 766 (8th Cir. 2005), 17 

Powell v. Yellow Book USA, Inc., 445 F.3d 1074 (8th Cir. 2006), 90

Randolph v. Rodgers, 253 F.3d 342 (8th Cir. 2001), 150

Setser v. Novack Inv. Co., 638 F.2d 1137 (8th Cir. 1981), 168

Skinner v. Maritz, Inc., 253 F.3d 337 (8th Cir. 2001), 167

Ninth Circuit

AFSCME v. State of Washington, 770 F.2d 1401 (9th Cir. 1985), 73

Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000), 164

Circuit City Stores, Inc. v. Adams, 279 F.3d 889 (9th Cir. 2002), 106

Contreras v. City of Los Angeles, 656 F.2d 1267 (9th Cir. 1981), 48

Douglas v. California Department of Youth Authority, 271 F.3d 812 (9th Cir. 

2001), 145

EEOC v. Pacific Press Publishing Association, 676 F.2d 1272 (9th Cir. 1982), 84

Enlow v. Salem-Keizer Yellow Cab Co., Inc., 389 F.3d 802 (9th Cir. 2004), 16
Major Issues in the Federal Law of Employment Discrimination

214

Federation of African American Contractors v. City of Oakland, 96 F.3d 1204 

(9th Cir. 1996), 168

Garcia v. Spun Steak Co., 998 F.2d 1480 (9th Cir. 1993), 39, 83

Harriss v. Pan American World Airways, Inc., 649 F.2d 670 (9th Cir. 1980), 70

Katz v. Regents of the University of California, 229 F.3d 831 (9th Cir. 2000), 

140

Legal Aid Society v. Brennan, 608 F.2d 1319 (9th Cir. 1979), 178

Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 1985), 144

Merrick v. Farmers Insurance Group, 892 F.2d 1434 (9th Cir. 1990), 21

Miller v. Fairchild Industries, Inc., 797 F.2d 727 (9th Cir. 1986), 88

Miller v. Maxwell’s International Inc., 991 F.2d 583 (9th Cir. 1993), 75, 90

Nichols v. Azteca Restaurant Enterprises Inc., 256 F.3d 864 (9th Cir. 2001), 79

Officers for Justice v. Civil Service Commission, 979 F.2d 721 (9th Cir. 1992), 

49, 58

Rosenfeld v. Southern Pacific Co., 444 F.2d 1219 (9th Cir. 1971), 69

Tenth Circuit

Gudenkauf v. Stauffer Communications, Inc., 158 F.3d 1074 (10th Cir. 1998), 

122

Harrison v. Eddy Potash, 248 F.3d 1014 (10th Cir. 2001), 76

Kendrick v. Penske Transportation Services, Inc., 220 F.3d 1220 (10th Cir. 

2000), 17

McKenzie v. Dovala, 242 F.3d 967 (10th Cir. 2001), 149

Montes v. Vail Clinic, Inc., 497 F.3d 1160 (10th Cir. 2007), 39

Ramsey v. City of Denver, 907 F.2d 1004 (10th Cir. 1990), 16

Roe v. Ogden, 253 F.3d 1225 (10th Cir. 2001), 150

Sorbo v. United Parcel Service, 432 F.3d 1169 (10th Cir. 2005), 17

White v. York International Corp., 45 F.3d 357 (10th Cir. 1995), 164

Eleventh Circuit

Albra v. Advan, Inc., 490 F.3d 826 (11th Cir. 2007), 90

Butts v. Volusia County, 222 F.3d 891 (11th Cir. 2000), 168

Canup v. Chipman-Union, Inc., 123 F.3d 1440 (11th Cir. 1997), 122

Crum v. Alabama (In re Employment Discrimination Litigation against the State 

of Alabama), 198 F.3d 1305 (11th Cir. 1999), 140

EEOC v. Alton Packaging Corp., 901 F.2d 920 (11th Cir. 1990), 16

EEOC v. Joe’s Stone Crab Inc., 296 F.3d 1265 (11th Cir. 2002), 119
Table of Cases by Court

215

Gellington v. Christian Methodist Episcopal Church, Inc., 203 F.3d 1299 (11th 

Cir. 2000), 84

Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982), 75

Judkins v. Beech Aircraft Corp., 745 F.2d 1330 (11th Cir. 1984), 96

Lindsey v. American Cast Iron Pipe Co., 810 F.2d 1094 (11th Cir. 1987), 139

Moore v. Devine, 767 F.2d 1541 (11th Cir. 1985), 109

Thomas v. Denny’s, Inc., 111 F.3d 1506 (11th Cir. 1997), 169

Willis v. Conopco, Inc., 108 F.3d 282 (11th Cir. 1997), 164

District of Columbia

Bailey v. Federal National Mortgage Association, 209 F.3d 740 (D.C. Cir. 

2000), 106

Dashnaw v. Pena, 12 F.3d 1112 (D.C. Cir. 1994), 117

Kolstad v. American Dental Association, 139 F.3d 958 (D.C. Cir. 1998), 1112

Mastro v. Potomac Electric Power Co., 447 F.3d 843 (D.C. Cir. 2006), 15

Northeast Construction Co. v. Romney, 485 F.2d 752 (D.C. Cir. 1973), 178

Parker v. Baltimore & Ohio Railroad Co., 652 F.2d 1012 (D.C. Cir. 1981), 15

Salazar v. Washington Metropolitan Area Transit Authority, 401 F.3d 504 (D.C. 

Cir. 2005), 17

District Courts

Brennan v. Board of Education, 374 F. Supp. 817 (D. N.J. 1974), 175

Bridges v. Eastman Kodak Co., 800 F. Supp. 1172 (S.D.N.Y. 1992), 75

Cush-Crawford v. Adchem Corp., 94 F. Supp. 2d 294 (E.D.N.Y. 2000), 112

EEOC v. Sage Realty Corp., 507 F. Supp. 599 (S.D.N.Y. 1981), 69

Erickson v. Bartell Drug Co., 141 F. Supp. 2d 1266 (W.D. Wash. 2001), 71

Fesel v. Masonic Home of Delaware, Inc., 447 F. Supp. 1346 (D. Del. 1978), 68

Hill v. Berkman, 635 F. Supp. 1228 (E.D.N.Y. 1986), 109

Hodgson v. Sagner, Inc., 326 F. Supp. 371 (D. Md. 1971), 175

Legault v. aRusso, 842 F. Supp. 1479 (D.N.H. 1994), 49

Lowell v. Glidden-Durkee, 529 F. Supp. 17 (N.D. Ill. 1981), 96

Lowry v. Clark, 843 F. Supp. 228 (E.D. Ky. 1994), 75

Pugh v. Locke, 406 F. Supp. 318 (M.D. Ala. 1976), 66

Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (E.D. Va. 1968), 64

Raiser v. O’Shaughnessy, 830 F. Supp. 1134 (N.D. Ill. 1993), 75

Simmons v. Al Smith Buick Co., 841 F. Supp. 168 (E.D.N.C. 1993), 137
The Federal Judicial Center

Board

The Chief Justice of the United States, Chair

Judge Susan H. Black, U.S. Court of Appeals for the Eleventh Circuit

Magistrate Judge John M. Facciola, U.S. District Court for the District of Columbia

Judge James B. Haines, Jr., U.S. Bankruptcy Court for the District of Maine

Judge James F. Holderman, Jr., U.S. District Court for the Northern District of Illinois

Judge Edward C. Prado, U.S. Court of Appeals for the Fifth Circuit

Chief Judge Loretta A. Preska, U.S. District Court for the Southern District of New York

Judge Kathryn H. Vratil, U.S. District Court for the District of Kansas

Judge Thomas F. Hogan, Director of the Administrative Office of the U.S. Courts

Director

Judge Jeremy D. Fogel

Deputy Director

John S. Cooke

About the Federal Judicial Center

The Federal Judicial Center is the research and education agency of the federal judicial system. It 

was established by Congress in 1967 (28 U.S.C. §§ 620–629), on the recommendation of the Judicial Conference of the United States.

By statute, the Chief Justice of the United States chairs the Center’s Board, which also includes 

the director of the Administrative Office of the U.S. Courts and seven judges elected by the Judicial Conference.

The organization of the Center reflects its primary statutory mandates. The Education Division 

plans and produces education and training programs for judges and court staff, including video 

programs, publications, curriculum packages for in-court training, and Web-based programs and

resources. The Research Division examines and evaluates current and alternative federal court 

practices and policies. This research assists Judicial Conference committees, who request most 

Center research, in developing policy recommendations. The Center’s research also contributes 

substantially to its educational programs. The two divisions work closely with two units of the 

Director’s Office—the Systems Innovations & Development Office and Communications Policy 

& Design Office—in using print, broadcast, and on-line media to deliver education and training 

and to disseminate the results of Center research. The Federal Judicial History Office helps courts 

and others study and preserve federal judicial history. The International Judicial Relations Office 

provides information to judicial and legal officials from foreign countries and assesses how to 

inform federal judicial personnel of developments in international law and other court systems that 

may affect their work.