Chapter Thirteen | Remedies for Breach of Contract

A breach of contract occurs when a promisor fails, with­out any legal excuse or cause, to perform any of the obligations, undertakings, or promises stipulated in the contract. In such a case, the non-breaching party, also called the aggrieved party, is entitled to seek to a remedy against the breaching party. In most cases, this involves a suit for money damages. In some cases, a party may seek an injunction or a writ of specific performance in a court of equity in conjunction with a contract action. An injunction compels a party to do or refrain from specific acts. 


Compensatory Damages

Damages that are awarded to compensate the non-breaching party for the loss of the bargain are called compensatory damages. Compensatory damages may also be known as “general damages” or “benefit of the bargain” damages. For a breach of contract, “the law of damages seeks to place the aggrieved party in the same economic position he would have had if the contract had been [fully] performed.”  In a contract for the sale of goods, at least two possibilities exist. If the seller commits a breach and fails to deliver the goods called for in the contract, one possible measure of damages is the difference be­tween the contract price and the market price of the goods at the time of the breach.


Suppose that Seton Hall University contracts to buy 10 Notebook Computers from Computers R-Us at $4,000 each. If Computers R-Us fails to deliver the Notebooks as called for in the contract, and the current price of the computers is $4,500, Seton Hall’s measure of damages in this case is $5,000 (ten times $500—the difference in the current price and contract price).

In other cases, the buyer may avail himself of the remedy of “cover”; that is, the buyer may go into the marketplace and make “in good faith and without any unreasonable delay any reasonable purchase or a contract to purchase goods in substitution” for those due from the seller. The buyer may then recover from the seller the dif­ference between the cost of cover and the contract price, plus any incidental or consequential damages, less any expenses saved. The remedy of cover is found in UCC §2712, and is the preferred action for an aggrieved buyer under the Uniform Commercial Code.

Incidental damages [UCC §2715] are any reasonable expenses incurred in effecting cover (i.e., transportation charges, freight charges, phone calls, etc.) or in the resale of the goods [UCC §2-710].


In our PC example, if Seton Hall absolutely needed the Notebooks for an important conference, they might go to a local computer dealer and effect cover. Suppose the cover price was $4,650. Under the UCC, Seton Hall would be entitled to recover the difference between the cover price ($4,650) and the contract price ($4,000­), equaling $650 per unit, plus any incidental damages, minus any expenses saved, provided, of course, that this purchase had been made in “good faith.”

On the other side of the equation, under UCC §2706, a seller may elect to resell the goods which a buyer has wrong­fully rejected or when the buyer has refused to take delivery. Here, the seller may recover the difference between the resale price and the contract price (together with any incidental damages under UCC §2710, but less any expenses saved). All of the elements of the resale must be reasonable, and in some cases, notice of the resale must be given to the breaching party.

Consequential Damages

Interestingly, prior to 1854, there were almost no rules relating to contract damages. Assessment of damages was generally left to the discretion of the jury. In 1854, the important case of Hadley v. Baxendale was decided. The court laid down two important rules, applicable generally to the area of contract damages. First, the aggrieved party may recover those damages “as may fairly and reasonably be considered… arising naturally, i.e., according to the usual course of things, from such breach of contract itself.”  Second, the aggrieved party may recover damages “such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.”    Under the first rule, for example, cover or resale damages under UCC §2-712 or UCC §2-706 will naturally and obviously flow from the breach so everyone will be deemed to contemplate them. Under the second rule, “special” or “consequential” damages may be deemed to be within the contemplation of the parties, but only under well-defined “special circumstances.”

Consequential damages are those caused by special circumstances occurring beyond the contract itself.  Such damage, loss, or injury does not flow directly and immediately from the act of the breaching party, but from some of the consequences or results of such an act.  In order for a court to award consequential damages (often in the form of lost profits), the breaching party must know that “special circumstances” will cause the non-breaching party to suffer an additional loss. In prac­tical terms, the non-breaching party may have to give the breaching party “notice” of the special circumstances.


The ice shipment for the Fubarski Meat Market is not delivered as required by contract. Consequently, Fubarski’s entire freezer of fresh kielbasa is ruined. Fubarski goes to the local 7-Eleven and purchases ice, at an additional cost of $100 over and above the contract price. The ice company would be liable for the additional $100 as “cover” damages. In addition, the ice company might also be held liable for the meat spoilage as consequential damages arising from the consequences of the failure to deliver the ice.A second type of spe­cial or consequential damages occurs in cases where a defective product causes personal injury. Compensation for personal injury would be an example of consequential damages that might arise in a breach of warranty action. 

Let’s look at the classic common law case of Hadley v. Baxendale.


Case Summary

Hadley v. Baxendale

156 Eng. Rep. 145 (1845)


The plaintiffs ran a flour and gristmill in Gloucester, England. The crankshaft attached to the steam engine broke, causing the mill to shut down. The shaft had to be sent to a foundry located in Greenwich so that the new shaft could be made to fit the other parts of the engine. The defendants were common carriers, who transported the shaft from Gloucester to Greenwich. The plaintiffs claimed that they had informed the defendants that the mill was stopped and that the shaft must be sent immedi­ately. The freight charges were collected in advance, and the defendants promised to deliver the shaft the following day. They did not do so, however. Consequently, the mill was closed for several days. The plaintiffs sued to recover their lost profits during that time. The defendants contended that the loss of profits was “too remote.”   The court held for the plaintiffs, and the jury was allowed to take into consideration the lost profits. The high court reversed.


We think that there ought to be a new trial in this case; but, in so doing, we deem it to be expedient and necessary to state explicitly the rule which the Judge, at the next trial, ought, in our opinion, to direct the jury to be governed by when they estimate the damages.

* * *  Now we think the proper rule in such a case as the present is this: Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made were communi­cated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contem­plation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such a breach of contract. For, had the special circumstanc­es been known, the parties might have specially provided for the breach of contract by special terms as to the damages in that case; and of this advantage it would be very unjust to deprive them. Now the above principles are those by which we think the jury ought to be guided in estimating the damages arising out of any breach of contract.

* * * Now, in the present case, if we are to apply the principles above laid down, we find that the only circumstances here communicated by the plaintiffs to the defendants at the time the contract was made, were, that the article to be carried was the broken shaft of a mill, and that the plaintiffs were the millers of that mill. But how do these circumstances show reasonably that the profits of the mill must be stopped by an unreasonable delay in the delivery of the broken shaft by the carrier to the third person?  Suppose the plaintiffs had another shaft in their possession put up or putting up at the time, and that they only wished to send back the broken shaft to the engineer who made it; it is clear that this would be quite consistent with the above circumstances, and yet the unreasonable delay in the delivery would have no effect upon the intermediate profits of the mill. On the other hand, again, suppose that, at the time of the delivery to the carrier, the machinery of the mill had been in other respects defective, then, also, the same results would follow. Here it is true that the shaft was actually sent back to serve as a model for a new one, and that the want of a new one was the only cause of the stoppage of the mill, and that the loss of profits really arose from not sending down the new shaft in proper time, and that this arose from the delay in delivering the broken one to serve as a model. But it is obvious that, in the great multitude of cases of millers sending off broken shafts to third persons by a carrier under ordinary circumstanc­es, such consequences would not, in all probability, have occurred; and these special circum­stances were here never communicated by the plaintiffs to the defendants. It follows, therefore, that the loss of profits here cannot reasonably be considered such a conse­quence of the breach of contract as could have been fairly and reason­ably contemplated by both the parties when they made this contract. ∗∗∗∗∗∗∗∗∗∗

The English court ordered a new trial, holding that the “special circumstanc­es” that caused the loss of profits had not been sufficiently communicated by the plaintiffs to the defendants. The plaintiff would be required to give “express notice” of these circumstances in order to collect special damages.

Punitive Damages

Punitive damages are also called exemplary damages. Punitive damages are designed to punish a “guilty” party for intentional, malicious, willful, or wanton conduct in order to make an example of the breaching party. The purpose of awarding punitive damages is to deter the wrongdoer from similar conduct in the future, as well as to deter others from engaging in similar conduct.  Gener­ally, punitive damages will not be awarded in cases of simple breach of contract, except for a category of cases involving contract fraud, due to the presence of “scienter,” or the intent to deceive. The court may add an additional amount (in some cases, three times the actual damages, called treble damages) in order to punish the breaching party for this wrong­ful conduct.

The United States Supreme Court entered the debate concerning punitive damages in 1996 and held in BMW of North America, Inc. v. Gore (517 U.S. 559) that under the Due Process Clause of the Fourteenth Amendment the amount of punitive damages awarded by a jury cannot be “grossly excessive” and must bear some reasonable relationship to the actual damages sustained. There have also been attempts by several state legislatures to limit or even abolish punitive damages in a wide variety of tort cases. The issue of excessive damage awards is often addressed by the request of a party for a remittitur of the damages awarded.

Nominal Damages

Where a party has suffered no true or provable damage, a court may choose to award only nominal damages which recognize the existence of a breach. In our Notebook computer case, if the cost of the Notebooks had declined, and Seton Hall could not demonstrate any incidental damages, Seton Hall might only be entitled to the award of nominal damages for this “technical breach,” because no actual monetary loss had been sustained. In such a case, a prudent plaintiff might think twice and decide not to file a lawsuit in the first place.

Liquidated Damages

A contract may specify an exact dollar amount that is to be paid in the case of a default or a breach. Such a clause is called a liquidated damage clause. Under the common law, a court would enforce a liquidated damage clause if: 

  • The amount set as liquidated damages is a reasonable estimate of the probable loss; and 
  • The parties must intend to provide for damages rather than a penalty. 

Suppose that a student had attempted to rent an apartment in South Orange and had submitted a standard rental application. As part of the application process, the student had to put down one month’s rent (approximately $800). The contract stated that the student would forfeit the deposit if she failed to rent the apart­ment. When the student changes her mind, she is informed that her deposit will be retained as liquidated damages. Can the landlord keep the deposit?  What standards should the court apply?  Evaluate.

Attorneys’ Fees

In the United States (as opposed to Great Britain, which has adopted a modified “loser pays” view), an award of damages will not ordinarily include reimbursement of the successful party’s attorney’s fees. Attorney’s fees should be viewed in light of the prior discussion of consequential damages. However, it has become common practice for commercial and residential leases, commercial paper, and contracts for sale of real estate to contain a clause providing for the collection of “reasonable attorney’s fees” in a case of non-payment  A majority of courts uphold such agreements, permitting recovery of a stipulated amount in excess of the damages that would accrue, provided that the amount demanded is reasonable. What do you think of the “Loser Pays” rule found in Great Britain?      

The Remedy of Specific Performance

The remedy of specific performance is an extraordinary remedy developed in a court of equity, also called a Chancery Court, to provide relief when the legal remedy of damages was inadequate. The remedy of specific performance is most appropriate when the non-breaching party is not seeking monetary damages; rather, the non-breaching party asks a court to issue a decree ordering a party affirmatively to carry out contractual duties (called a mandamus action), or desires performance of the promises in the contract.

Generally, courts will award specific perfor­mance if monetary damages are inadequate to put the non-breach­ing party in as good a position had the contract had been fully performed. In most cases of contracts for the sale of goods, monetary damages will be deemed adequate, since substitute goods may be readily available in the marketplace through the remedy of cover, or the goods can be sold in the marketplace through the remedy of resale. However, under the common law, if the goods were considered unique, a court of equity may issue a decree of specific performance. Under the common law, such “unique” items included antiques, objects of art, racehorses, stock in a closely held corporation, and all land. Recall the remedy W.O. Lucy was seeking in Lucy v. Zehmer.

Courts are very reluctant to grant specific performance in personal service contracts because public policy consider­ations discourage what would amount to involuntary servitude. In addition, courts do not generally desire to monitor a continuing personal service contract to assure that it is carried out. Specific performance is rarely available in an action in a small claims court.

Read Tower City Grain v. Richman for a discussion of specific performance under the UCC. Although the UCC attempted to liberalize the availability of the remedy of specific performance in §2-716, such relief may remain the extraordinary rather than the ordinary remedy because courts generally prefer aggrieved parties to avail themselves of the remedies of cover and resale in cases of a breach of contract involving the sale of goods.


Case Summary

Tower City Grain Co. v. Richman

232 N.W.2d, 61 N.D. (1975)

Plaintiff sued the defendant for specific perfor­mance of an oral contract for the sale of wheat. The lower court ordered specific performance and the defen­dant appealed. The defendant contended that specific performance was not a proper remedy in this case.


*  *  *  The Uniform Commercial Code is controlling in the instant case and states in part:

1. Specific performance may be decreed where the goods are unique or in other proper circumstances.

2. The decree for specific performance may include such terms and conditions as to payment of the price, damages, or other relief as the court may deem just. (Emphasis added.)

While the Richmans’ contention that fungible goods were not a proper subject for the remedy of specific relief under prior law is correct, the adoption of the Uniform Commercial Code in 1966 liberalized the discre­tion of the trial court to grant specific performance in a greater number of situations. The Official Comment to §2-716, UCC, provides in pertinent part:

1. The present section continues in general prior policy as to specific perfor­mance and injunction against breach. However, without intending to impair in any way the exercise of the court’s sound discretion in the matter, this Article seeks to further a more liberal attitude than some courts have shown in connection with the specific perfor­mance of contracts of sale.

2. In view of this Article’s emphasis on the commercial feasibility of replacement, a new concept of what are “unique” goods is introduced under this section. Specific performance is no longer limited to goods which are already specific or ascer­tained at the time of contracting. The test of unique­ness under this section must be made in terms of the total situation which characteriz­es the contract.

In addition, (the Code) states that “the remedies provided by this title shall be liberally administered to the end that the aggrieved party may be put in as good a position as if the other party had fully per­formed.”  We cannot presume that an award of damages fails to put an aggrieved party in as good a position as if the other party had fully performed. There was no finding or conclusion to that effect by the trial court in this case.

A complaint which prays for the equitable remedy of specific performance must clearly show that the legal remedy of damages is inadequate. A defendant should not be deprived of a jury trial, to which he would be entitled in an action at law, unless the plaintiff is clearly entitled to the equitable remedy he seeks.

Historically, specific performance, which is an equitable remedy, was applied primarily to contracts relating to goods which were “unique.”  All real estate was deemed to be unique, and so were goods which had sentimental as distinguished from market value. Another basis for invoking specific performance was the inadequa­cy of the remedy at law.

A factual basis for a conclusion that the remedy of specific performance is available should be found by the trier of facts in order, that this court, on appeal may know the basis upon which it arrived at such a conclu­sion.

There is no finding by the trial court in this case that indicates what it believes to be the proper circum­stances. Our examination of the record indicates no evidence upon which such finding could be based. The fact that the complaint prayed for specific performance and that the Richmans have in their possession the type and quantity of wheat called for in the contract are not adequate to support such a finding.

The buyer may obtain specific performance of the contract for the sale when the goods are unique or other proper circumstances are shown. Because the purpose of this section is to liberalize the right to specific performance, it would appear that it is not to be of great significance whether a given circumstance is regarded as involving “unique goods” or “proper circum­stances”; ordinarily, circumstances which are proper will impart uniqueness to the goods. “Uniqueness in a reasonable commercial setting is the significant point.”

Without holding that specific performance can never be invoked to enforce a contract for grain or other fungible goods, we conclude that it was a manifest abuse of discretion and an error as a matter of law for the trial court to grant such a remedy under the circumstanc­es of this case.

Judgment reversed and remanded with leave to amend.

As can be seen, the writers of the UCC attempted to broaden the scope of specific performance by adding a section [§2716 (1)] which states that specific perfor­mance may be decreed where the goods are “unique” or “in other proper circumstances.” Yet, many courts are reluctant to go beyond the conventional categories of unique goods found in the common law. Under the code, what is the precondition to filing a suit for specific performance?  What are “proper circumstances”?  Why are some courts so reluctant to go beyond the common law?

The court found that specif­ic performance would be an appropriate remedy in Campbell Soup Co. v. Wentz. However, the court ultimately refused to issue the decree for specific performance because it ruled that the underlying contract was unconscionable. What did the court find unconscionable about the contract between the parties?


Case Summary

Campbell Soup Co. v. Wentz

172 F.2d 80 (3d Cir. 1948)


Campbell Soup Company, the plaintiff, entered into a contract for the sale of carrots with farmers who grew and produced the particular variety of carrots used in the company’s canned goods. Under the terms of the contract, a farmer was required to cut, clean, and bag the produce. When the carrots were delivered, the company determined if they conformed to company specifi­ca­tions. Another provision in the contract excused the company from accepting carrots under certain circumstanc­es but retained the right to prohibit the sale of those carrots elsewhere unless the company agreed. The carrots involved in this case were Chantenay red carrots.

Campbell Soup made a written contract with the defendant, Wentz, a Pennsylva­nia farmer. Wentz was to deliver all the Chantenay red carrots he grew on his fifteenacre farm that year for $30 per ton. During the year, the market price of the carrots rose sharply to about $90 per ton, and Chantenay red carrots became virtually unobtainable. The defendant told a Campbell representative that he would not deliver his carrots at the contract price. Then, he sold the rest of his carrots to a neighboring farmer. Campbell bought about half the shipment from the neighboring farmer and then realized that it was purchasing its own “contract carrots.”  Campbell refused to purchase any more and sought an injunction against both the defendant and the neighboring farmer to prohibit them from selling any more of the contract carrots to others. In addition, Campbell sought to compel specific performance of the contract against Wentz. The trial court denied the equitable relief requested by Campbell.

GOODRICH, Circuit Judge

*  *  *

The trial court denied equitable relief. We agree with the result reached, but on a different ground from that relied upon by the District Court.

*  *  *

We think that on the question of adequacy of the legal remedy the case is one appropriate for specific performance. It was expressly found that at the time of the trial it was “virtually impossible to obtain Chantenay carrots in the open market.”  This Chantenay carrot is one which the plaintiff uses in large quantities, furnishing the seed to the growers with whom it makes contracts. It was not claimed that in nutritive value it is any better than other types of carrots. Its blunt shape makes it easier to handle in processing. And its color and texture differ from other varieties. The color is brighter than other carrots. The trial court found that the plaintiff failed to establish what proportion of its carrots is used for the production of soup stock and what proportion is used as identifiable physical ingredi­ents in its soups. We do not think lack of proof on that point is material. It did appear that the plaintiff uses carrots in fifteen of its twenty one soups. It also appeared that it uses Chantenay carrots diced in some of them and that the appearance is uniform. The preserva­tion of uniformity in appearance in a food article marketed throughout the country and sold under the manufacturer’s name is a matter of considerable commer­cial significance and one which is properly considered in determining whether a substitute ingredient is just as good as the original. 

*  *  *

Judged by the general standards applicable to determining the adequacy of the legal remedy we think that on this point the case is a proper one for equitable relief. There is considerable authority, old and new, showing liberality in the granting of an equitable remedy. We see no reason why a court should be reluctant to grant specific relief when it can be given without supervision of the court or other time consuming process­es against one who has deliberately broken his agreement. Here the goods of the special type contracted for were unavailable on the open market, the plaintiff had contracted for them long ahead in anticipation of its needs, and had built up a general reputation for its products as part of which reputation uniform appearance was important. We think if this were all that was involved in the case specific performance should have been granted.

We are not suggesting that the contract is illegal. Nor are we suggesting any excuse for the grower in this case who has deliberately broken an agreement entered into with Campbell. We do think, however, that a party who has offered and succeeded in getting an agreement as tough as this one is, should not come to a chancellor and ask court help in the enforcement of its terms. That equity does not enforce unconscionable bargains is too well established to require elaborate citation.

This case provides an interesting glimpse into the relationship between the equitable remedy of specific performance and the doctrine of unconscionability. Since specific performance is an equitable remedy, the petitioner must come to court “with clean hands,” reflecting the following legal maxim: “He who seeks equity must do equity.”  What do you think this phrase means? 

The Requirement of Mitigation

In a situation where a breach of contract has oc­curred, the non-breaching party may be required to lessen or miti­gate damages. A party who has suffered a wrong by a breach may not unreasonably sit by and allow damages to accumulate or worsen. The law will not permit the aggrieved party to recover from the breaching party those damages that he “should have foreseen and could have avoided by reasonable effort without undue risk, expense, or humiliation.” [Restatement, Contracts §336(1)].

The doctrine requires reasonable efforts by the non-breaching party to mitigate or lessen damages. However, the wronged party is not required to mitigate if the cost of mitigation would involve unreasonable expense or if the effort itself would be unreasonable. The case of Parker v. Twentieth Century Fox demonstrates the operation of the mitigation principle in a case of a breach of an employ­ment contract.


Case Study

Parker v. Twentieth Century Fox Film Corp.

474 P.2d 689 (1970)

Procedural Posture

Shirley McLain Parker signed a contract to play the female lead in Twentieth Century Fox’s projected motion picture Bloomer Girl. Before production began, the corporation decided not to produce the picture and notified the actress of its decision. With the professed purpose of avoiding damage to the actress, the corpora­tion offered her the leading role in another film entitled Big Country, Big Man. She rejected the alter­nate role and sued for damages. The corporation claimed the actress had unreasonably refused to mitigate harm to her career by refusing to accept the substitute role. Parker won the case.


The trial court pointed out that although the contract for the substituted role offered identical compensation and terms as the prior contract, Bloomer Girl was to have been a musical, and Big Country was to be a dramatic western movie. Furthermore, the musical was to be filmed in California, the western in Australia. The original contract also specified that the actress could approve the director for the musical, and if that person failed to direct the picture, she was to have the right to approve any substitute director. The actress also had the right to approve of the musical’s dance director and the screenplay. The western offer eliminat­ed or impaired each of those rights. Twentieth Century Fox’s sole defense is that the actress unreasonably refused to mitigate damages by rejecting the substitute offer of employment.


In this case, the offer to star in the western was for employment both different from and inferior to that of making the musical, and no factual dispute exists on that issue. The female lead as a dramatic actress in a western style motion picture can by no stretch of the imagination be the equivalent of or substantially similar to the lead in a song-and-dance production. In addition, the western offer proposed to eliminate or impair the approvals the actress had under the original musical contract, and thereby constituted an offer of inferior employment.

There is a split of authority in real estate leasing cases, although the majority view would indicate that the lessor must at least attempt to mitigate damages in case of a breach by a lessee by at least attempting to re-rent the property. Any reasonable expenses incurred in these efforts would be recoverable as “incidental expenses.”


Two Seton Hall University students are renting an apartment in South Orange. For no good reason, the students decide to move out, causing a breach of the lease agreement. Under these circumstances, most states would require that the landlord use reasonable means to secure a new tenant. If such a tenant becomes available, the landlord will be required to mitigate the damages that are recoverable from the former tenant. Of course, the breaching party is liable for the difference between the amount of the original rent and the rent received from the new tenant. The landlord would also be entitled to recover any costs reasonably incurred in the mitigation effort. Now suppose the landlord did absolutely nothing and refused to take steps to re-rent the apartment.  The court might reduce the amount of damages awarded by the amount the landlord could have received had reasonable steps in mitigation been taken.

In a case where an employee has been terminated for no just cause, but where the employer alleges that the employee had failed to mitigate their damages by refusing to accept alternate employment, the burden of proof is on the employer to prove the existence of an alternate job and to prove that the employee could have been hired—that is, that the employee had failed to mitigate his or her damages by refusing to accept suitable alternate employment.


Ethical Considerations

Punitive Damages

Should a state legislature place an arbitrary limit on the award of punitive damages or should this issue be strictly reserved for a jury, subject always to a motion for a remittitur to a judge?

Specific Performance

Generally, a court of law or an arbiter cannot order specific performance of a contract. Do you agree or disagree with this prohibition? If specific performance were an option to a judge or arbiter, would that fundamentally change the role of the court or of an arbiter?



Hadley v. Baxendale

  1. What remedy was the plaintiff seeking?
  2. What is a “common carrier”?
  3. How did the court formulate the rule established in this case for awarding damages?
  4. Where would you expect to find an agreement to provide for consequential damages?

Tower City Grain v. Richman

  1. What remedy was the plaintiff seeking?  Why?
  2. What is the definition of “uniqueness” under common law?  Under the Code?
  3. What finding must be made before a court can award specific performance?
  4. Who decides whether the remedy of specific performance would be an appropriate one?
  5. What items fall within the definition of uniqueness under the common law?

Campbell Soup v. Wentz

  1. Was the remedy of specific performance appropriate in this case?  Why or why not?
  2. Who is a “chancellor”?  What is equity?
  3. What was unconscionable about the contract entered into between the parties?
  4. Explain the “clean hands” doctrine.

Parker v. Twentieth Century Fox

  1. What is mitigation?
  2. What would be the measure of Parker’s damages?
  3. Who has the burden of proof concerning mitigation?


Copyright © 2017 Hunter | Shannon | Amoroso | O’Sullivan-Gavin

Chapter Eighteen | Employment Discrimination


Title VII of the Civil Rights Act of 1964 (Title VII) (and amendments) applies to employers with 15 or more employees involved in interstate commerce. Title VII prohibits employers from discriminating against prospective and current employees in the workplace in hiring, upgrading, compensating, firing, promoting, training, transferring, appraising; and in relation to “other terms and conditions of employment” based on race, sex, color, religion, and national origin. Title VII also applies to employment agencies and to employers in charge of training or apprenticeship programs.

The Civil Rights Act Of 1964

Title VII

Specifically Title VIII of the act provides:
“It shall be an unlawful employment practice for an employer —
  • 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
  • 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.”
Title VII does not apply to every employer but rather, it is limited to the following:
  • Employers with at least 15 employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year
  • Labor Unions with at least 15 employees;
  • State and local government entities;
  • Employment agencies who provide workers to companies covered by Title VII; and
  • US citizens employed in foreign countries by a US employer or a US controlled employer.
Certain employment situations are not subject to Title VII, including employment of aliens outside the U.S., religious entities (including educational institutions) when employing individuals of a particular religion to perform work connected with carrying on of the entity’s activities, the Congress of the United States, and elected state representatives.
Even though Title VII has a minimum threshold requirement on the number of employees, employers who fall below the 15 employee requirement are generally not free from employment regulation in the area of discrimination. Many states have passed laws prohibiting discrimination in employment for employers with less than fifteen employees. State anti-discrimination statutes may afford employees additional protections beyond Title VII, but may not reduce the protections of the Act. For example, the New Jersey Law Against Discrimination (LAD) (N.J.S.A. 10:5-1 et seq.) prohibits discrimination against the protected classes in Title VII relating to race, sex, color, religion and national origin without respect to minimum employer numbers and in fact offers additional protections extending to sexual orientation and gender identity.
In 1991, Title VII was amended to protect U.S. citizens employed in foreign countries by a U.S. employer or a U.S. “controlled” employer.
Employers are prohibited from retaliating against employees who bring charges of discrimination, testify, assist, or participate in enforcement proceedings. 42 U.S. Code § 2000e-3(a)

Title VII Enforcement 

The Equal Employment Opportunity Commission (EEOC), created pursuant to the Equal Employment Opportunity Act of 1972, and the Department of Justice enforce the provisions of the Civil Rights Act. Members of the EEOC are appointed by the President, by and with the advice and consent of the Senate, for a term of five years. The Department of Justice enforces Civil Rights actions against state and local governments upon referral from the EEOC.
In seeking redress under the law, an individual alleging violation of Title VII must file a complaint with the local office of the EEOC within 180 days of any adverse job action.
In actions instituted at the state level, the EEOC works with, and generally defers to, state Equal Employment Opportunity (EEO) agencies for up to 60 days at the end of which the EEOC will commence a preliminary investigation. During and immediately after the investigation, the EEOC is required by statute to engage in conciliation negotiations in an attempt to settle the case. If efforts at conciliation fail, the EEOC may choose to file suit in U.S. District Court against the employer on the employee’s behalf, or may decide not to take any action at all. After 180 days have passed from the time of the complaint, the employee may demand that the EEOC issue a “right to sue letter,” entitling the employee to file a lawsuit in U.S. District Court.

Title VII Damages and Remedies

Depending on the nature of the complaint, and whether it involves intentional or unintentional discrimination, employees claiming discrimination under Title VII may seek monetary damages and equitable remedies. All claimants under Title VII can seek court costs, expert’s fees, and attorney fees.
Monetary damages can include both compensatory and punitive damages. Compensatory damages include back pay — lost wages and benefits; front pay, if it is unreasonable for the employee to continue to work for the employer — including costs associated with job searches; reputational harm; emotional distress; pain and suffering; and medical expenses. Compensatory damages are capped as follows based upon the number of employees in the previous year:
  • 15 to 100 employees — $50,000.00
  • 101 to 200 employees — $100,000.00
  • 201 to 500 employees — $200,000.00
  • 501 or more employees — $300,000.00
Punitive damages may be awarded if the employer “engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” (42 U.S. Code § 1981a(b)). The award of punitive damages is not automatic. The courts will look to several factors including the intent of the employer; whether the employer was aware of the discrimination; the policies of the employer; and whether the employer disregarded its own policies.
Equitable remedies seek to put the employee in the economic position he/she would have been had the discrimination not occurred. Equitable remedies include hiring, reinstatement, promotion, and a possible injunction — enjoining the alleged discriminatory employment practice(s) and any future conduct of the employer.
The awarding of damages and remedies are dependent upon the type of discrimination claim. Disparate treatment (intentional discrimination) claims include requests for monetary damages and equitable remedies discussed above. In disparate treatment or mixed motives discrimination claims, the damages and remedies of the plaintiff may be limited. If the employer can prove that it acted with mixed motives and that it would have made the same employment decision in any case, the employee may receive declaratory relief, injunctive relief, attorney’s fees and costs, but may not receive monetary damages (compensatory or punitive) or the equitable remedies of reinstatement, hiring, promotion, or payment. In disparate impact discrimination claims, remedies include equitable relief and attorney’s fees, but no compensatory or punitive damages. The different types of discrimination claims are discussed in the following sections.

Title VII Discrimination Theories 

There are three primary theories for proving discrimination under Title VII: (1) disparate treatment, (2) mixed motives discrimination, and (3) disparate impact discrimination.

Disparate Treatment Discrimination

Considered as overt or intentional discrimination, disparate treatment discrimination occurs when an employee can show that he/she was treated differently because of race, color, sex, religion, or national origin. Disparate treatment discrimination applies to hiring, firing, promotions, post-employment references, transfers, or any term or condition of employment.
In McDonnell Douglas Corp. v. Green, 421 U.S. 792 (1973), the Supreme Court heard the case of an African-American mechanic who had been laid off during a workforce reduction and was not rehired. Green claimed that he was not rehired because he protested alleged racial inequality at the plant. The Supreme Court established the following elements necessary to prove disparate treatment discrimination:
First, the plaintiff-employee must prove a “prima facie” case of discrimination by establishing the following four steps: (1) Plaintiff belongs to a racial minority (or some protected class); (2) Plaintiff applied for and was qualified for the position; (3) Plaintiff, despite his/her job qualifications, was rejected for employment; (4) After plaintiff’s rejection, someone else was hired for the position.
Second, once these four elements are satisfied, the burden of proof shifts to the employer-defendant. The employer must present evidence that its decision was based upon a legitimate, non-discriminatory reason. These reasons may include educational requirements, merit, productivity, the presence of a valid seniority system, or a number of other non-discriminatory reasons used to reach a hiring decision. Employers may also raise affirmative defenses such as a bona fide occupational qualification (BFOQ) and business necessity. These defenses are more fully discussed in the next section.
Third, the burden of proof then shifts back to the employee to show that the employer illegally discriminated against him/her and to show that the employer’s reasons were a mere pretext for discrimination. (McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).

Mixed Motives Discrimination

Title VII was amended after the 1989 decision in Price Waterhouse v. Hopkins, 490 U.S. 222 (1989), in order to recognize that in some employment discrimination cases, the employer will mix permissible and impermissible reasons for a otherwise discriminatory employment decision or practice. Title VII specifically provides:
“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.” (42 U.S. Code § 2000e– 2(m)).

Case Study

Price Waterhouse v. Hopkins

490 U.S. 228 (1989)

Procedural Posture

Defendant employer appealed from the decision of the United States Court of Appeals for the District of Columbia Circuit, which affirmed the lower court’s ruling in favor of plaintiff employee in her sex discrimination claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq.


Defendant employer appealed a judgment in favor of plaintiff employee in her action under Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq. The courts below held that an employer who had allowed a discriminatory impulse to play a motivating part in an employment decision could avoid liability by showing by clear and convincing evidence that it would have made the same decision in the absence of discrimination. Title VII of the Civil Rights Act of 1964 forbids an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate with respect to his compensation, terms, conditions, or privileges of employment, or 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 sex. **** Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., condemns employment decisions based on a mixture of legitimate and illegitimate considerations. Therefore, when an employer considers both gender and legitimate factors at the time of making a decision, that decision was “because of” sex and the other, legitimate considerations. **** After a plaintiff has made out a prima facie case of discrimination under Title VII of the Civil Right Act of 1964, 42 U.S.C.S. § 2000e et seq., the burden of persuasion does not shift to the employer to show that its stated legitimate reason for the employment decision was the true reason. The plaintiff retains the burden of persuasion on the issue whether gender played a part in the employment decision. **** If an employer allows gender to affect its decision-making process, then it must carry the burden of justifying its ultimate decision. **** In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender. **** Remarks at work that are based on sex stereotypes do not inevitably prove that gender played a part in a particular employment decision. The plaintiff must show that the employer actually relied on her gender in making its decision. In making this showing, stereotyped remarks can certainly be evidence that gender played a part. **** As to the employer’s proof in sex discrimination suits, in most cases, the employer should be able to present some objective evidence as to its probable decision in the absence of an impermissible motive. Moreover, proving that the same decision would have been justified is not the same as proving that the same decision would have been made. An employer may not, in other words, prevail in a mixed-motives case by offering a legitimate and sufficient reason for its decision if that reason did not motivate it at the time of the decision. Finally, an employer may not meet its burden in such a case by merely showing that at the time of the decision it was motivated only in part by a legitimate reason. **** An employer who had allowed a discriminatory impulse to play a motivating part in an employment decision must prove by a preponderance of the evidence that it would have made the same decision in the absence of discrimination. **** When a plaintiff in a Title VII, 42 U.S.C.S. § 2000e et seq., case proves that her gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff’s gender into account.


The Court reversed and remanded the case to the lower court, holding that defendant employer had to prove by a preponderance of the evidence that its employment decision relating to plaintiff employee was not motivated by a discriminatory purpose.

Disparate Impact Discrimination

Disparate impact discrimination occurs when an employer uses an employment practice, rule, or policy that appears to be non-discriminatory, or facially neutral, but, when applied, has a different and negative impact on a protected class. (For example: “House person wanted; must be six-feet-three or better and have a moustache; all sexes may apply.”)
Similar to disparate treatment discrimination, disparate impact discrimination is proven in three steps.
  • The plaintiff-employee must make out a prima facie case by pointing to an employment practice, and showing that the practice excludes a disproportionate number of people in a protected class;
  • The defendant-employer must then respond to the plaintiff’s allegations by either disproving the plaintiffs showing of a disparate exclusion of a protected group or showing that the practice in question is job related and necessary for the business, that is, proving the existence of a bona fide occupational qualification or BFOQ.
  • The plaintiff must then prove that the employer’s reason was a mere pretext or that other employment practices would achieve the same results without discrimination.

Discrimination Based on Race, Color, and National Origin

Title VII prohibits discrimination on the basis of an applicant’s or employee’s race, color, or national origin. Recent court cases have included challenges to employers’ policies on interracial association, “English Only” workplace requirements, and other employment policies. Interestingly, the EEOC has stated that “English Only” rules in the workplace violate federal discrimination laws unless the employer can justify the rule as a business necessity. The Monsanto case, 770 F.2d 719 (1985), deals with the requirement that an employment rule must be uniformly applied to all employees regardless of their race.
Case Study

Smith v. Monsanto Chemical Co.

770 F.2d 719 (8th Cir. 1985)
Procedural Posture
Appellant employer sought review of the order of the District Court for the Eastern District of Missouri, which entered judgment in favor of appellee employee in his racially-based employment discrimination action alleging violations of Title VII, 42 U.S.C.S. § 2000e(5), and 42 U.S.C.S. § 1981.
After the employee took three rag towels from the employer’s plant and locked them in the trunk of his car, the employee was terminated for the theft of company property. The employee filed a complaint with the Equal Employment Opportunity Commission (EEOC), alleging his termination was racially motivated. The EEOC disagreed, but provided the employee a Notice of Right to Sue. The employee filed an action in the district court, and a jury returned a verdict in favor of the employee on the §1981 claim and the district court found in favor of the employee on the Title VII claim. The employer appealed, and the court reversed the judgment of the district court. The employer had a policy that all employees who had less than five years seniority would be discharged for stealing, without consideration of other factors, which was uniformly applied. In connection with the 42 U.S.C.S. § 1981 claim, the court concluded that no reasonable jury could find that the employer disciplined white employees more leniently than the employee. In regard to the Title VII claim, the district court’s finding that the employee’s termination was motivated by racial discrimination was clearly erroneous.
The court reversed the order of the district court, which had entered judgment in favor of the employee.

Discrimination Based on Religion

Discrimination based on religion is prohibited in the workplace under Title VII. Religion is defined in Title VII as including “…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.” Title VII requires that employers must make reasonable accommodations to permit employees to observe their religious practices. These may include giving employees time off without pay to observe religious holidays, permitting workers “early release” in order to attend services, and permitting employees to dress according to the dictates of the religion. The burden of proof is on the employer to show that such an accommodation would create an “undue hardship” for the employer.
Recent cases involving religious discrimination in the workplace requiring employers to provide contraceptive care under the Affordable Care Act, and employer rules on body art and piercings.
Case Study

EEOC v. Abercrombie & Fitch Stores, Inc.

135 S. Ct. 2028 (2015)
Procedural Posture
Whether an employer was entitled to summary judgment on a claim that it violated Title VII of the Civil Rights Act of 1964 by refusing to hire a practicing Muslim applicant on the ground that the headscarf she wore would violate the employer’s dress policy. 
Respondent (Abercrombie) refused to hire Samantha Elauf, a practicing Muslim, because the headscarf that she wore pursuant to her religious obligations conflicted with Abercrombie’s employee dress policy. The Equal Employment Opportunity Commission (EEOC) filed suit on Elauf’s behalf, alleging a violation of Title VII of the Civil Rights Act of 1964, which, inter alia, prohibits a prospective employer from refusing to hire an applicant because of the applicant’s religious practice when the practice could be accommodated without undue hardship. The EEOC prevailed in the District Court, but the Tenth Circuit reversed, awarding Abercrombie summary judgment on the ground that failure-to-accommodate liability attaches only when the applicant provides the employer with actual knowledge of his need for an accommodation.
It was not necessary to show that the employer had actual knowledge of the applicant’s need for an accommodation in order to establish disparate treatment under 42 U.S.C.S. § 2000e-2(a)(1). Instead, it was only necessary to show that the applicant’s need for an accommodation was a motivating factor in the employer’s decision; [2]-A claim based on failure to accommodate a religious practice did not have to be raised as a disparate impact claim rather than a disparate treatment claim, as religious practice was a protected characteristic that could not be accorded disparate treatment.****
The rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.**** Title VII of the Civil Rights Act of 1964 does not limit disparate-treatment claims to only those employer policies that treat religious practices less favorably than similar secular practices. Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not to fail or refuse to hire or discharge any individual because of such individual’s religious observance and practice. An employer is surely entitled to have, for example, a no-headwear policy as an ordinary matter. But when an applicant requires an accommodation as an aspect of religious practice, it is no response that the subsequent failure to hire was due to an otherwise-neutral policy. Title VII requires otherwise-neutral policies to give way to the need for an accommodation.
Judgment reversed; case remanded.
In Cloutier v. Costco, 390 F.3d 126 (1st Cir. 2004), the employee, who wore an eyebrow ring, claimed that her employer’s dress code ban on any visible facial or tongue jewelry and failure to accommodate her request to do so was religious discrimination due to her religious practice as a member of the Church of Body Modification. The District Court held that the employer had accommodated the employee by offering to reinstate her if she covered the piercing with a band-aid or replaced it with a clear retainer (as per the company policy). The Court held the employee’s request for a complete waiver of the policy would place an undue burden on the employer, precluding it from exercising its managerial discretion and presenting a professional public image to the public.
A different outcome was found in EEOC v. Red Robin Gourmet Burgers, Inc., 2005 U.S. Dist. LEXIS 36219 (W.D. Wash. Aug. 29, 2005), in which the Federal District Court found that the employer had failed to provide sufficient evidence of undue hardship in accommodating the employee’s religious beliefs. The employee had two tattoos on his wrists in connection with his Kemetecism (ancient Egyptian) religion. The employee worked for six months for the employer before he was asked to cover the tattoos; when he refused, his employment was terminated. The employer did not have a dress code or grooming policy, had never received any customer complaints regarding the employee’s tattoos, and did not provide any other evidence that accommodating the employee would be an undue hardship.

Sex Discrimination

Title VII of the Civil Rights Act specifically prohibits discrimination in employment decisions and practices on the basis of sex. The Civil Rights Act of 1964 act was amended in 1978 by the Pregnancy Discrimination Act to include prohibitions on discrimination related to pregnancy, childbirth, and related medical conditions. Why would an employer discriminate based on sex? Some argue sex discrimination is grounded in historical perceptions of the sexes, misuse of power, the economics of women in the workforce, a form of workplace control, or in response to threats to previously male-dominated workplaces. In Ellison v. Brady, the 9th Circuit held that Title VII was designed by Congress “to prevent the perpetuation of stereotypes and a sense of degradation which serve to close or discourage employment opportunities for women.”
There is one major problem: The Civil Rights Act does not explicitly define “sex” and recent social developments have led to a debate as to what the term “sex” means or should mean in the Act. Does “sex” mean gender (i.e., male and female), or does the term include sexual preference, gender identity, etc.? [The World Health Organization defines “sex” as “the biological and physiological characteristics that define men and women” whereas “gender” “refers to the socially constructed roles, behaviors, activities, and attributes that a given society considers appropriate for men and women.”] The EEOC, as the agency that interprets and enforces the Act, has stated that the meaning of “sex” includes gender identity and sexual orientation. As such, the agency has provided protections for lesbian, gay, bisexual, and transgender (LGBT) applicants and employees, regardless of state or local laws to the contrary. In Oncale v. Sundowner Offshore Services., 523 U.S. 75 (1998) the U.S. Supreme Court recognized same-sex sexual harassment as sex discrimination under Title VII. Despite the views of the EEOC, there may be need for Congress to clarify these issues.
Other issues related to sex discrimination include fetal protection policies (where the policy seeks to protect a fetus from workplace hazards), discrimination based on “family responsibility,” and issues relating to Title IX of the Education Amendments of 1972 [20 U.S.C. 1681 et seq.] which prohibits discrimination on the basis of sex in any federally funded education program or activity. In Int’l Union v. Johnson Controls, 499 U.S. 187 (1991), the U.S. Supreme Court held a fetal protection policy restricting all fertile females from certain jobs was too restrictive because the female employee did not have any choice and there was no BFOQ asserted as to safety. In Asad v. Cont’l Airlines, Inc., 328 F. Supp. 2d 772 (N.D. Ohio 2004), the District Court held that the Pregnancy Protection Act did not prevent an employer from transferring a pregnant employee at her request. In Childers v. Trustees of the University of Pennsylvania, No. 14-2439, 2016 U.S. Dist. LEXIS 35827 (E.D. Pa. Mar. 21, 2016), the District Court found that improper comments related to plaintiff’s family responsibilities created a prima facie case of discrimination.
Issues in the workplace that can potentially create liability for employers include employer policies relating to office romances, dress codes, displays of sexually explicit or suggestive pictures or calendars, jokes, email, information posted on social media platforms, and sexual innuendoes.

Wage Discrimination

The Civil Rights Act prohibits employer decisions and practices related to wages and benefits that discriminate on the basis of sex (42 U.S. Code Sec. 2000e-5(e)(3)(A).
The Lilly Ledbetter Fair Pay Act of 2009 was passed in response to the U.S. Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007). In this case, Ledbetter discovered that she was paid less than men in substantially same positions. The Court held in favor of the employer based upon the 180-day statute of limitations in the CRA, which required claims to be filed from the original date of the pay decision or first pay date. The Lilly Ledbetter Fair Pay Act amends Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967, and modifies the operation of the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973, “to clarify that a discriminatory compensation decision or other practice that is unlawful under such Acts occurs each time compensation is paid pursuant to the discriminatory compensation decision or other practice, and for other purposes.” The Act includes a retroactivity provision that provides the employee may “obtain relief as provided in subsection (g)(1), including recovery of back pay for up to two years preceding the filing of the charge, where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.”

Sexual Harassment

Sexual harassment is prohibited under Title VII because it is considered a form of sex discrimination. Sexual harassment is the perpetration of unwelcome sexual advances, requests for favors, or other physical or verbal conduct of a sexual nature conducted in the workplace. Two types of sexual harassment exist in the workplace: “quid pro quo” and hostile environment.
Quid pro quo (meaning “something for something”; in Latin: “this for that”) sexual harassment is harassment tied to job performance. This type of harassment occurs when any aspect of a job or employment decision is conditioned upon receiving sexual favors or engaging in sexual activity. Classic examples include when a boss tells his employee, “sleep with me or you are fired” or “if you don’t date me, your chances of promotion are poor.” The quid pro quo offer must be unwelcome.
Until 1986, only “quid pro quo” was considered a violation of Title VII. Then, in Vinson v. Meritor Savings Bank, the United States Supreme Court ruled that if the harassment is sufficiently pervasive or severe to create a hostile work environment, it is a violation of Title VII even if the unwelcome conduct is not linked to concrete employment benefits. Hostile environment sexual harassment is far more common, but may be harder to eradicate from the workplace. Hostile environment sexual harassment can occur when sexual talk and innuendo is so pervasive in the workplace that it interferes with employees’ ability to work. Conduct that could lead to a hostile environment includes, but is not limited to, sexual advances; requests for sexual favors; verbal statements or physical actions of a sexual nature; offensive jokes; comments about body parts or clothes; emails of a sexual nature; pornography; non-sexual gender based verbal or physical conduct; inflammatory and patently offensive epithets, slurs, or demeaning comments relating to gender; touching of intimate body parts; pictures; staring; work rules relating to dress codes) sexually suggestive e-mail; and perceived favoritism based on sex.
The standard for determining a hostile work environment is based on the persona of a “reasonable victim” (female or male) wherein the court reviews the particular plaintiff’s perceptions as to whether the situation is sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment. (Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991).
The employee must show conduct that is verbal, physical, frequent, hostile and patently offensive:
  1. that is gender based;
  2. that effects the terms/conditions of employment;
  3. that is unwelcome (a subjective test); and
  4. that is severe/pervasive so as to alter the conditions of the employee’s work environment and create a hostile environment.

The conduct can be that of a coworker, supervisor, client, a customer, or a supplier. In a hostile work environment case, it is the effect of the behavior, not the intent of the person acting that will be judged.

When is an employer responsible for the sexual harassment perpetrated by its employees? Under the legal doctrine of respondeat superior employers are liable for the sexual harassment of their employees if they knew or had reason to know of the sexually offensive atmosphere and they provided no reasonably available means of bringing complaints and seeking redress. Courts have also determined that an employer bears an absolute liability for acts committed by a supervisory employee.
In Ellison, the Ninth Circuit held:
“Employers should impose sufficient penalties on employees to assure a workplace free from sexual harassment. In essence, the reasonableness of an employer’s remedy will depend on its ability to stop harassment by the person who engaged in harassment. In evaluating the adequacy of the remedy, the court may also take into account the remedy’s ability to persuade potential harassers to refrain from unlawful conduct. Indeed, meting out punishments that do not take into account the need to maintain a harassment-free working environment may subject the employer to suit by the Equal Employment Opportunity Commission.” 
In Burlington Indus. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. Boca Raton, 524 U.S. 775 (1998),the Supreme Court defined the conditions necessary for employer liability:
  1. The victimized employee must have suffered a “tangible employment action” (Ellereth defined this as termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, or significantly diminished material responsibilities); or
  2. If the victimized employee has not suffered a tangible negative employment action (under Ellereth “usually economic harm”), the employer can shield itself from liability by showing that:
    • the employer took reasonable care to prevent and correct sexual harassment in its workplace, and
    • the employee unreasonably failed to take advantage of complaint and resolution procedures available to the employee provided by the company as found in Faragher.
Case Study

Faragher v. City of Boca Raton

524 U.S. 775 (1998)
Procedural Posture
Petitioner lifeguard, who worked for respondent city, sought a writ of certiorari to review the judgment of the United States Court of Appeals for the Eleventh Circuit, which reversed a judgment entered in favor of petitioner in an action against respondent under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C.S. § 2000e et seq., for a sexually hostile work environment created by her supervisors.

Petitioner worked as a lifeguard for respondent city. Petitioner lifeguard brought an action against respondent and her two immediate supervisors, asserting a claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq. The complaint alleged that the two supervisors had created a sexually hostile atmosphere at the beach by repeatedly subjecting petitioner and other female lifeguards to uninvited and offensive touching and lewd remarks. Petitioner asserted that the supervisors were agents of respondent and that their conduct amounted to discrimination in the terms, conditions, and privileges of her employment. The judgment of the trial court, which entered judgment in favor of petitioner and held respondent liable, was reversed by the court below. The judgment of the court below was reversed and remanded for reinstatement of the trial court’s judgment. The court’s judgment was based on an application of its holding that an employer may be held vicariously liable for actionable discrimination caused by a supervisor, but subject to an affirmative defense looking to the reasonableness of the employer’s conduct as well as that of a plaintiff victim.
In order to be actionable under Title VII of the Civil Rights Act of 1964, 42 UY.S.C.S. § 2000e et seq., a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so. Courts are directed to determine whether an environment is sufficiently hostile or abusive by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.*** Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., does not prohibit genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex. Simple teasing, offhand comments, and isolated incidents, unless extremely serious, will not amount to discriminatory changes in the terms and conditions of employment.***
The requirement to show that the employee has failed in a coordinate duty to avoid or mitigate harm reflects an equally obvious policy imported from the general theory of damages, that a victim has a duty to use such means as are reasonable under the circumstances to avoid or minimize the damages that result from violations of the statute. An employer may, for example, have provided a proven, effective mechanism for reporting and resolving complaints of sexual harassment, available to the employee without undue risk or expense. If the plaintiff unreasonably failed to avail herself of the employer’s preventive or remedial apparatus, she should not recover damages that could have been avoided if she had done so. If the victim could have avoided harm, no liability should be found against the employer who had taken reasonable care, and if damages could reasonably have been mitigated no award against a liable employer should reward a plaintiff for what her own efforts could have avoided.*** the general rule that an employer is subject to vicarious liability, under Title VII of Civil Rights Act of 1964, 42 USCS 2000e et seq., for a supervisor’s actionable sexual harassment, but may raise an affirmative defense looking to reasonableness of the conduct of the employer and the victim…***

Reversed and remanded for reinstatement of the original judgment after the court held that employers may be held liable for actionable discrimination, subject to a defense based on reasonableness of the employer’s conduct.
Employees who are unsuccessful in bringing federal or state claims under the Title VII or under state anti-discrimination statutes may bring a common law tort action or a criminal or civil complaint for assault and battery, rape, intentional infliction of emotional distress, defamation, contractual interference with an employment contract, intrusion of privacy, and wrongful discharge.
What can an employer do to satisfy the requirement that it take reasonable care to correct and prevent sexual harassment? First, employers should provide regular and thorough training for all of its employees regarding discrimination and sexual harassment. Second, employers should have a clearly communicated and visible policy regarding the prohibition of discrimination based on sex and the prohibition of sexual harassment. Third, a viable complaint procedure should be in place to handle any complaints, such as a designated employee as a contact for handling sexual harassment complaints, or an anonymous 1-800 complaint telephone line. Fourth, a company should take annual surveys of its employees to ensure that its sexual harassment policy is understood in order to learn whether the current workplace is free of sexual harassment. Last, employers should regularly review policies for compliance with federal, state, and local laws, changing social trends, and developing case law.

Title VII Defenses 

Employers charged with Title VII violations have a limited number of affirmative defenses including business necessity, bona fide occupational qualification, seniority and merit systems, and after-acquired evidence of actions of the employee.

Business Necessity

In order to assert the affirmative defense of business necessity to a claim of disparate impact, the employer must demonstrate that the practice or requirement is related to successful job performance and is necessary for the job. The employer may still face liability if the employee shows “an alternative employment practice and the respondent refuses to adopt such alternative employment practices.” (42 U.S. Code § 2000e–2(k)(1)(i)(ii)). Business necessity is a defense to a claim of disparate impact, but is not a defense against a claim of intentional discrimination. (42 U.S. Code § 2000e–2 (k) (2)). If the employer can show that the employment practice does not cause a disparate impact, the employer does not need to prove a business necessity.

Bona fide Occupational Qualifications (BFOQs)

A second affirmative defense that an employer can raise against a claim of disparate treatment discrimination is the existence of a bona fide occupational qualification (or BFOQ). An employer may discriminate in the workplace based on national origin, religion or sex, but not race or color, where the employer is able to argue affirmatively that national origin, religion, or sex is a bona fide occupational qualification (BFOQ) under 42 U.S. Code § 2000e–2. The burden of proof is on the employer to prove that the subject classification is reasonably necessary for the normal operation of the business—that is, it is “directly related to successful job performance.”
Instances where discrimination may be permissible include employment positions where privacy is a critical consideration in hiring (ex: rest room attendants; nursing home attendants); actor/actress or modeling roles which are gender specific; and certain faculty at religious institutions. Mere customer preference for a particular gender, i.e. airline passengers preferring female airline attendants, is never sufficient to establish a BFOQ defense.
In the area of job tests (involving paper and paper tests, minimum height requirements, etc.), any testing that is administered or any criteria applied must likewise be related to “successful job performance.”
Case Study

Griggs v. Duke Power Co.

401 U.S. 424, (1971)
Procedural Posture
Petitioner employees sought certiorari to review a decision of the United States Court of Appeals for the Fourth Circuit, which held that respondent employer’s requirement of a high school education or the passing of an intelligence test as a condition of employment did not violate Title VII of the Civil Rights Act, 42 U.S.C.S. § 2000e-2, because there was no showing of a discriminatory purpose in the adoption of the requirements.
The employees sought review of the lower court’s decision, which concluded that the requirements of a high school education or the passing of a general intelligence test as a condition of employment in or transfer to jobs did not violate Title VII. The Court reversed on the basis that practices, procedures, or tests that were neutral on their face could not be maintained if they operated to freeze the status quo of prior discriminatory employment practices. The Court found that it was significant that the requirements were not shown to bear a demonstrable relationship to the successful performance of the jobs for which the standards were used and that the requirements operated to disqualify black applicants at a substantially higher rate than white applicants for jobs that were formerly filled only by white employees. The employer’s lack of discriminatory intent was not controlling because courts were required to look to the consequences of the employment practices, not simply the motivation. Tests could be used to measure job performance if they measured the person for the job and not the person in the abstract.
Under Civil Rights Act of 1964, 42 U.S.C.S. § 2000e, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to “freeze” the status quo of prior discriminatory employment practices.**** Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e, proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity.**** If an employment practice that operates to exclude members of one racial group cannot be shown to be related to job performance, the practice is prohibited by Title VII of the Civil Rights Act of 1964,.**** Good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as “built-in headwinds” for minority groups and are unrelated to measuring job capability.**** Section 703(h) of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e-2, authorizes the use of any professionally developed ability test that is not designed, intended, or used to discriminate because of race.
The Court reversed the lower court’s judgment in favor of the employer.

Seniority and Merit Systems

A third defense available to employers against a claim of discrimination applies to a bona fide seniority system or merit system (one based on quality or quantity of production), provided these criteria are not intended, designed, or used to discriminate on the basis of race, color, religion, sex, or national origin. (SEC. 2000e-2(h) and (l)).

After-Acquired Evidence of Employee Actions

Evidence of employee misconduct that is discovered during preparations of the employer’s defense to a claim of discrimination is an affirmative defense used to limit the employer’s liability for a claim of employment discrimination. In order to use the “after acquired evidence” to show nondiscriminatory intent in an employee’s termination, the employer must show that the wrongdoing occurred; the employer was previously unaware of the misconduct; and the employer would have terminated the employee for the wrongdoing in any event having now learned about the employee’s misconduct. (See McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352 (1995)).
Case Study

Ricci v. DeStefano 

557 U.S. 557 (2009)
Procedural Posture
Petitioners, white and Hispanic firefighters, brought actions against respondent city alleging that the city’s refusal to certify promotion examination results based on disparate racial impact of the examination deprived the firefighters of promotions on the basis of their race. Upon grants of writs of certiorari, the firefighters appealed the judgment of the U.S. Court of Appeals for the Second Circuit which upheld the city’s action.
On the basis of the examination results, no black candidates were eligible for immediate promotion, and the city determined not to certify the examination results to avoid potential liability for discrimination based on a disparate impact against the black candidates. The white and Hispanic firefighters contended that they were subjected to disparate treatment in the denial of promotions on the basis of their races in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq. The U.S. Supreme Court held that the city improperly discarded the examination to achieve a more desirable racial distribution of promotion-eligible candidates, since there was no strong basis in evidence that the examination was deficient and that discarding the examination was necessary to avoid disparate impact. The threshold showing of statistical disparity in the examination results was insufficient by itself to constitute a strong basis in evidence of unlawful disparate impact, the extensively analyzed examinations were job-related and consistent with business necessity, and there was no strong basis in evidence of an equally valid, less-discriminatory testing alternative.
The judgment upholding the city’s refusal to certify the examination results was reversed, and the cases were remanded for further proceedings.

Age Discrimination In Employment Act (ADEA) Of 1967

The ADEA prevents employers from making employment decisions based upon the age of job applicants or employees if those job applicants or employees are over the age of 40. The original legisla­tion had an age cap of 65 that was subsequently raised to age 70. Today, pursuant to an amendment offered by Representative Claude Pepper (who had been in Congress when the original Social Security Act was adopted), unless otherwise provided for, an employer may not require an employee to retire at any age. Exceptions apply relating to certain government employees, judges, police, employees such as airline pilots and others where age may be a BFOQ, and certain “top-level executives” who may be forced to retire at a certain age. The ADEA covers all employers with 20 or more employees. State laws prohibiting age discrimination may also apply.
The elements of proof in an age discrimination claim are the same as those used to judge a claim brought under Title VII. Plaintiff must make out a prima facie case; defendant responds with a legitimate, non-discriminatory reason; and plaintiff then shows that the defendant’s reason was merely a pretext for discrimination. The EEOC enforces the provisions of the ADEA.

Americans With Disabilities Act (ADA) of 1990 

The Americans With Disabilities Act (ADA) prohibits discrimination in employment decisions and employment practices on the basis of disability. The ADA is divided into five titles: Title I covers employment matters; and Titles II-IV address access to public walkways, streets, buildings and transportation. The ADA applies to all companies with 15 or more employees. The EEOC enforces the provisions of the ADA.
The ADA provides that employers cannot discriminate in any decision, practice, term or condition of employment based on a physical or mental disability. The ADA defines disability as:
“ a physical or mental impairment that substantially limits one or more major life activities; a record of such impairment; or being regarded as having such an impairment. Examples of major life activities include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, operation of a major bodily function, learning, reading, concentrating, thinking, communicating, and working.”
Conditions such as kleptomania, pyromania, current use of illegal drugs, and sexual disorders are not included as disabilities.
Like Title VII and the ADEA, proving disparate treatment discrimination under the ADA uses the three-step proof mechanism articulated McDonnell Douglas v. Green. However, the ADA imposes an additional requirement upon employers. Employers must make reasonable accommodations in order to make it possible for disabled individuals to perform the “essential functions” of their job. Reasonable accommodations include providing facilities that are accessible to the disabled, job restructuring, offering part-time work, effecting modifications of equipment, and providing readers or interpreters for those employees who are visually or hearing impaired. However, there are limits. Employers do not have to grant a request for an accommodation if such request would place an undue hardship on the company in order to provide for the accommodation. Whether or not an employer would suffer an undue hardship from a requested accommodation is based on four factors:
  1. The nature and cost of the accommodation;
  2. The size, workforce, and resources of the specific facility involved;
  3. The size, workforce, and resources of the covered entity, and
  4. The nature of the covered entity’s entire operation.
In addition, employers do not have to accommodate individuals who pose a direct threat to themselves and others in the workplace or who cannot perform necessary job functions with an accommodation being made.

The Rehabilitation Act of 1973

Employment discrimination protections are afforded to those with disabilities under the Rehabilitation Act of 1973 which prohibits discrimination on the basis of disability in programs run by federal agencies, programs receiving federal financial assistance, in federal employment, and in the employment practices of federal contractors. The Department of Labor enforces this act.

Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA)

Employees who take positions in the U.S. military service are afforded employment protections under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). This statute provides job and wage protection (including promotions and benefits) for U.S. military personnel returning to their employment in the private sector. Employers are required to rehire military service personnel and are prohibited from treating employees differently upon rehire. The Department of Labor enforces this act.

Financial Discrimination: Background, Credit and Social Media Checks

Financial discrimination in the workplace involves employment decisions or practices based on the financial situation of the applicant or employee. Employers often use background checks, credit reports, and review social media when determining whether to hire a job applicant or promote an employee. Information contained in these sources could give rise to claim that an employer discriminated against an applicant or employee. Employers who conduct these checks must comply with all federal, state, and local anti-discrimination and privacy laws. In addition, employers must comply with the requirements of the Fair Credit Reporting Act. The Federal Trade Commission enforces the provisions of the FCRA.

Affirmative Action and Diversity Programs

Affirmative action programs set employer’s goals and policies regarding the recruitment, hiring, and retention of employees in a protected class under Title VII, including minorities, disabled individuals, and veterans. Affirmative action programs seek to remedy past employment discrimination or to assure a diverse work environment. The EEOC defines diversity programs as “a business management concept under which employers voluntarily promote an inclusive workplace. Employers that value diversity create a culture of respect for individual differences in order to “draw talent and ideas from all segments of the population” and thereby potentially gain a “competitive advantage in the increasingly global economy.” Affirmative action and diversity programs may be based on effecting social policies, ethics, principles of fairness, and surprisingly, two contradictory provisions found in Section 703 of the Civil Rights Act of 1964.
Title VII Section 703(a)(1) of the Civil Right Act of 1964 is called the “equal treatment” section. Under Section 703(a)(1), it is unlawful to discriminate against any individual because the individual belongs to a protected class. Section 703(a)(1) calls for employers to be “class blind” when making employment decisions.
However, Section 703(a)(2) is called the “equal opportunity” section. Section 703(a)(2) makes it unlawful to limit or classify employees or applicants in any way that would deprive or tend to deprive them of employment opportunities or otherwise adversely affect the person’s status because of the individual’s membership in a protected class. Section 703(a)(2) calls for employers to consider membership in a protected class in order to determine if an employment practices or policies have resulted in disparate impact on a protected class.. It may be difficult to reconcile the concepts of “equal treatment” and “equal opportunity” at the same time, especially if the latter calls for “affirmative action.” Questions regarding the imposition of employment quotas are often raised in regard to affirmative action.
Affirmative action programs may be adopted voluntarily by employers, imposed on an employer by a court as a part of a settlement, or as a remedy when finding that an employer acted as part of a pattern of discrimination against employees. An affirmative action program may also be implemented in cases of government contracting.
On the federal level, affirmative action programs began with Executive Order 11246 in 1965, which was issued by President Lyndon Johnson. Executive Order 11246 prohibits federal contractors from discriminating against employees. At the same time, it mandated the creation and implementation of affirmative action plans which would apply to private employers as a condition of being awarded a contract with the federal government. Affirmative action requirements for federal contractors are administered by the U.S. Department of Labor, Office of Federal Contract Compliance Programs (OFCCP). Affirmative action and diversity programs are subject to strict scrutiny, i.e., they must be narrowly tailored in order to further a compelling governmental interest. These programs are also subject to judicial review for compliance with the Equal Protection Clause of the Fourteenth Amendment and the Civil Rights Act of 1964 and 42 U.S.C. Sec 1982.
In 1979, the U.S. Supreme Court upheld the legality of affirmative action programs in United Steel Workers of America v. Weber, 443 U.S. 193 (1973). The Court held that Title VII of the Civil Rights Act did not condemn all private, voluntary, race conscious affirmative action plans; and held that private sector employers and unions could lawfully implement voluntary affirmative action plans to remedy past discrimination. The EEOC enforces federal laws in connection with private sector affirmative action plans.
The EEOC compliance manual (2006), citing the Weber decision, states that:
“in examining whether such a voluntary affirmative action plan is legal under Title VII, courts consider whether the affirmative action plan involves a quota or inflexible goal, whether the plan is flexible enough so that each candidate competes against all other qualified candidates, whether the plan unnecessarily trammels the interests of third parties, and whether the action is temporary, e.g., not designed to continue after the plan’s goal has been met. “
Affirmative action programs enacted by public sector employers, public universities, and other public entities are often contested in courts throughout the United States. In Taxman v. Bd. of Educ., 91 F.3d 1547 (3d Cir. 1996), the Third Circuit Court of Appeals considered whether a school district’s affirmative action program which resulted in the school board’s termination of a teacher in order to achieve diversity in the workplace and not to remedy any past discrimination violated Title VII.
Although not a part of the employer-employee relationship, recently-decided cases may provide an insight into the views of the Supreme Court in future affirmative action cases. In Grutter v. Bollinger, 539 U.S. 306 (2003), the U.S. Supreme Court upheld a “holistic” admissions policy in which an applicant’s race was one of several factors to be considered, whereas in the same term, in Gratz v. Bollinger, 539 U.S. 244 (2003), the Court held an admissions policy that instituted a “point system” and assigned 20 automatic points to every member of an underrepresented minority, violated the equal protection clause of the Federal Constitution’s Fourteenth Amendment, because the point program was not narrowly tailored to achieve the interest in educational diversity that the university claimed justified the program.
Case Study

Taxman v. Board of Education

91 F.3d 1547 (3d Cir. 1996)
Procedural Posture
Defendant school board challenged a United States District Court for the District of New Jersey order granting partial summary judgment on liability to plaintiff teacher in a race-based employment discrimination action filed pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e-2. The teacher challenged the dismissal of her claim for punitive damages.
Plaintiff teacher intervened in an action initiated by the government against defendant school board, asserting race-based employment discrimination claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e-2. The trial court granted plaintiff partial summary judgment on liability and, after a damages trial, awarded her full back pay. Both sides appealed; defendant claimed error in the grant of partial summary judgment and plaintiff challenged the dismissal of her punitive damages claim. The court affirmed, ruling that defendant violated Title VII when it used its affirmative action plan to grant a non-remedial work force preference, by laying off plaintiff, in order to promote “racial diversity.” Applying a two-prong test, the court ruled that the affirmative action plan, which had no remedial purpose, could not be said to mirror the purposes of the statute because there was no congressional recognition of diversity as a Title VII objective requiring accommodation. In addition, the policy’s lack of definition and structure “unnecessarily trammeled” non-minority interests. The damage award was proper. There was no evidence to support a punitive damages claim.
The court affirmed the judgment awarding plaintiff teacher full back pay and granting her partial summary judgment on liability in an action against defendant school board for race-based employment discrimination. Defendant discriminated when it used its affirmative action plan to lay-off plaintiff in order to achieve “racial diversity.” The award of full back pay was proper. The punitive damages claim lacked evidentiary support.
Affirmative action and diversity programs have continued to be controversial and have continued to create claims by applicants, employees, and students of reverse discrimination. In June of 2016, the U.S. Supreme Court in Fisher v. Univ. of Texas, No. 14-981, 2016 U.S. LEXIS 4059 (June 23, 2016), upheld the constitutionality of the University of Texas at Austin’s affirmative action program. Stating that courts should give deference to a university to define educational goals that include the benefits of diversity in the student body, the Court held that universities must prove that the consideration of race is narrowly tailored to meet the permissible goals of achieving diversity in its student body and that “race-neutral alternatives” will not suffice to meet these goals. The Court applied three key criteria to its analysis:
  1. A university must show that it has a substantial interest in considering race as a factor in its admissions policy and that considering race is necessary to achieve this purpose;
  2. Courts should ordinarily defer to a university’s judgment that there are educational benefits that flow from diversity in the student body; and
  3. The university must prove that race-neutral alternatives will not achieve its goals of increasing diversity.
Specifically the court held:
“The compelling interest that justifies consideration of race in college admissions is not an interest in enrolling a certain number of minority students. Rather, a university may institute a race-conscious admissions program as a means of obtaining the educational benefits that flow from student body diversity. Enrolling a diverse student body promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races. Equally important, student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society. Increasing minority enrollment may be instrumental to these educational benefits, but it is not a goal that can or should be reduced to pure numbers. On the other hand, asserting an interest in the educational benefits of diversity writ large is insufficient. A university’s goals cannot be illusory or amorphous — they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them.”
Fisher may provide an insight into the Court’s views on affirmative action in a more general sense.
Review the Grutter case carefully.
Case Study

Grutter v. Bollinger

539 U.S. 306 (2003)
Procedural Posture
Petitioner law school applicant sued respondents, a law school, university regents, and university officials, claiming race discrimination in the law school’s admission policy. The trial court concluded that the policy was unlawful and granted an injunction. Sitting en banc, the United States Court of Appeals for the Sixth Circuit reversed the judgment and vacated the injunction. The Supreme Court granted certiorari.
The law school had long been committed to racial and ethnic diversity, especially to the inclusion of students from groups that, historically, had been discriminated against. Rather than imposing quotas, the law school admissions program focused on academic ability and a flexible assessment of applicants’ talents, experiences, and potential to contribute to the learning of those around them. It did not define diversity solely in terms of race and ethnicity but considered these as “plus” factors affecting diversity. The Court found that the Equal Protection Clause did not prohibit this narrowly tailored use of race in admissions decisions to further the school’s compelling interest in obtaining the educational benefits that flow from diversity. The goal of attaining a “critical mass” of underrepresented minority students did not transform the program into a quota. Because the law school engaged in a highly individualized, holistic review of each applicant, giving serious consideration to all the ways the applicant might contribute to a diverse educational environment, it ensured that all factors that could contribute to diversity were meaningfully considered alongside race.
The Court affirmed the decision of the circuit court.

Ethical Considerations

Affirmative Action
It is often argued that “it is time to end affirmative action” for minorities and women. Has this time now come? On the other hand, some have argued that it is is important to “mend it, not end it.” In light of the reasons for the creation of affirmative action plans in the first place, have “affirmative action” plans become obsolete or unnecessary?
Why should the government have the power to override the hiring and firing decisions of an owner of a business even if those decisions might amount to discrimination? After all, it is the business owner and not the government who has risked his or her capital in creating the business.
Mandatory Retirement
Should university faculty be subject to mandatory retirement at a certain age?
Protected Disability
Is it fair to place the burden of accommodating workers’ identifiable and protected handicaps on employers rather than force employees to seek employment in jobs where their handicaps will not be a factor in their employment? Before you respond, take a look at the website of the EEOC to identify the various types of “impairments” recognized by this administrative agency.


  1. What classes of workers are protected by Title VII?
  2. What are the three theories of discrimination under Title VII?
  3. Who enforces and what damages and remedies are available under Title VII?
  4. What are the prima facie case elements of a sexual harassment suit?
  5. How is wage discrimination addressed in the U.S.?
  6. What does it mean at law that an employer must accommodate an applicant or employee’s religion?
  7. What defenses can an employer raise to avoid or limit liability under Title VII and other discrimination statutes?
  8. How have recent technology innovations complimented the goals of the Americans With Disabilities Act?
  9. What is meant by financial discrimination?
  10. Has the Civil Rights Act of 1964 (as amended) worked a reverse discrimination on certain groups considered to be in the “majority” of the work force? Explain how you reached your conclusion.