DISCRIMINATION LAW OUTLINE

1. Introduction this topic deals with how the government regulates and outlaws
discrimination, while at the same time attempts to justify its own acts of discrimination.
Federal and State governments inevitably put people in CLASSIFICATIONS.

They are

legal so long as they meet one of two tests:

Rational Basis if there was a rational basis like New Orleans had when it limited the
number of street vendors, then there is no discrimination.

Strict Scrutiny if fundamental liberties or a suspect class are involved, then a court
will strictly scrutinize the government action taken and the government must then
demonstrate that it had a valid objective with no other alternative.

What about PRIVATE actions? What if a private individual creates a discriminatory

situation?

SHELLEY v. KRAEMER the USSC had to determine whether discriminatory acts on

the part of private individuals were enforceable in court.

If a court upholds such private acts of discrimination, then the courts action is itself a
State action which is therefore UNCONSTITUTIONAL!
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2. SEPARATE BUT EQUAL LAWS Jim Crow laws.

Overruled by the famous U.S. Supreme Court case of . . . . .

BROWN v. BOARD OF EDUCATION the Court had to determine whether separate

but equal laws were unconstitutional.

Integration of schools must be done with all deliberate speed took an awfully long
time in reality.

3. AFFIRMATIVE ACTION LAWS enacted to eliminate the effects of past racial

discrimination by setting aside certain positions for minorities in jobs and schools.

But, some affirmative action plans were challenged as being discriminatory to the
majority race white people . . . . . .
WYGANT v. JACKSON BOARD OF EDUCATION the USSC had to determine if
reverse discrimination occurred.

4. CIVIL RIGHTS ACT OF 1964 prohibited discrimination on the basis of RACE,

COLOR, RELIGION, SEX, or NATIONAL ORIGIN.

Prohibited discrimination in employment, housing, public accommodations, and credit:

DISCRIMINATION IN EMPLOYMENT: Creation of the Equal Employment Opportunity

Commission (EEOC). It is an independent regulatory commission that enforces the Civil
Rights Act of 1964 as it pertains to unlawful employment practices.

SIX TYPES OF VIOLATIONS:

1. Employers cannot fire or refuse to hire a person on the basis of race, color,
religion, sex or national origin.
2. Employment agencies cannot refuse to find a job on the basis of race, color,
religion, sex or national origin.
3. Unions cannot restrict membership on the basis of race, color, religion, sex or
national origin.
4. Neither employers nor labor unions can discriminate in training programs.
5. Neither employers nor labor unions can discriminate if an employee complains
about discrimination.
6. Neither employers nor labor unions can discriminate by printing ads indicating a
preference for employment on the basis of race, color, religion, sex or national
origin.

EXCEPTIONS: BFOQs (BONAFIDE OCCUPATIONAL QUALIFICATIONS)

(E.G. FEMALE GUARDS IN WOMENS PRISONS, JEWISH RABBIS IN JEWISH

TEMPLES, A WOMAN TO PLAY A FEMALE PART IN A PLAY)

Note: RACE AND COLOR ARE NEVER SUBJECT TO A BFOQ!!

In employment, how is discrimination defined? Courts have come up with TWO:

DISPARATE TREATMENT the employer consciously treats employees differently on

the basis of their race, color, religion, sex or national origin.

DISPROPORTIONATE IMPACT- the employment policies are discriminatory to

employees even though the policies themselves may be neutral.

__________________

SEXUAL HARASSMENT kind of a cross between disparate treatment and

disproportionate impact . . . . . .

MERITOR SAVINGS BANK v. VINSON the court had to determine whether an

employer is liable under the Civil Rights Act even if the sex was consensual and upper
management was unaware of the problem.

MILLER et. al. v. CALIFORNIA DEPARTMENT OF CORRECTIONS the court

considered whether a female employee could present a case of actionable hostile work
environment even though she was not the object of sexual harassment?

5. AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967 prohibits discrimination

against persons over 40 and bans mandatory retirement before age 70. EXCEPTION:
If age is a BFOQ. (e.g. if employment involves speed and dexterity) (Pro football
player?)

6. DISCRIMINATION IN HOUSING Civil Rights Act of 1968 and the Civil Rights Act
of 1866.

Civil Rights Act of 1968 called the FAIR HOUSING ACT. Amended the Civil Rights
Act of 1964. Prohibits discriminatory housing practices on the basis of race, color,
religion, sex, national origin, AND HANDICAP AND FAMILIES WITH CHILDREN.
Examples of illegal practices:
Refusing to sell or rent to a member of a protected class

Falsely representing that a dwelling is not available when inquiry is made by a member
of the protected class. (STEERING)

Inducing a person to sell their house because members of a protected class are moving
into the neighborhood. (BLOCKBUSTING or PANIC SELLING)

One EXCEPTION: If an owner of a dwelling is selling his/her own home.

EXCEPTION TO THE EXCEPTION: Selling ones own home through a real estate
broker and/or advertising that he/she has a buyer preference.

If one is a member of a protected class and has been discriminated against, one can file
a complaint with the federal housing and urban development office (HUD), state human
rights commission or even a local human relations commission.

Civil Rights Act of 1866 easier and more straightforward than the Civil Rights Act of
1968. Simply file a lawsuit in federal court, dont have to go through HUD, and the
exceptions in the Fair Housing Act are not available to the discriminatory person. There
are a greater number of discriminatory acts that are actionable under the 1866 law:
(e.g. spray painting derogatory language on the wall, and discrimination against Arabic
and Oriental persons)

7. DISCRIMINATION IN PUBLIC ACCOMMODATIONS like hotel, restaurants and

theaters. Protected by Civil Rights Act of 1964.

Found constitutional in the Heart of

Atlanta Motel case.

Remedy: sue in federal court and ask for injunction. Cannot sue for $$$ damages.
Attorney fees can be awarded.

8. DISCRIMINATION IN CREDIT found in the Equal Credit Act of 1974. Prohibits

discrimination against credit applicants on the basis of race, color, religion, sex, age,
national origin, income derived from welfare or marital status.

One important factor is still permissible for the determination of extending a person
credit:

DOES THE PERSON HAVE THE REAL ABILITY TO RE-PAY THE LOAN!

However, a creditor CANNOT refuse to loan a person money based upon answers to the
following questions:
Are you divorced?
Are you unemployed?
Are you on welfare?
Have you recently arrived in the U.S.?

END OF DISCRIMINATION LAW OUTLINE

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