What is the EEOC and what purpose and function does it serve? What laws are enforced by the EEOC? How does an employee with allegations of wrongdoing, based on laws in place that

5 Nondiscrimination and Affirmative

Action in Employment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Sec. 5.2. Sources of Law

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

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

criminate against any individual with respect to his compensation, terms, condi- tions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

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

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

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

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

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

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

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

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

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

5.2.1. Title VII 375

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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