XI. Employment Discrimination
XI. Employment Discrimination
XI. Employment Discrimination
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LEE LA W REVIEW
The Goucher decision highlights the need for placing a financial
exigency provision in the faculty tenure agreements of a college or
university. 6' If an institution wishes to modify existing tenure contracts
to include a financial exigency provision, Goucher suggests that such a
provision may be placed in the school's by-laws as a codification of a
preexisting, yet unwritten, contract term.62 The abrogation of tenure rights,
however, should be permitted only as a last resort in order to maintain a
viable educational program.e The unfavorable economic prospects for
higher education are generating increasing tension between the faculties
and administrations of American colleges and universities. 6 4 The Fourth
Circuit's decision in Goucher may have the effect of accelerating the
current trend towards collective bargaining in higher education.6 5
JAMES S. MCNEDER, ImI
XI.
EMPLOYMENT DISCRIMINATION
nation based upon race, color, religion, sex or national origin by public employers, 42 U.S.C.
§ 2000e(h) (
1976
), labor organizations, 42 U.S.C. § 2000e(d) (
1976
), or private businesses
having fifteen or more employees, 42 U.S.C. § 2000e(b) (
1976
). A claimant proceeding under
Title VII first must file an administrative charge of discrimination with the Equal
Employment Opportunity Commission (EEOC) within 180 days of the alleged discriminatory act.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798 (1973); 42 U.S.C. § 2000e-5(e)
(
1976
). A claimant may sue under Title VII only if he receives a notice of his right to sue from
the EEOC. Local 179, United Textile Wkrs. v. Federal Paper Stock Co., 461 F.2d 849, 851
(8th Cir. 1972). The EEOC issues a notice of the right to sue if the administrative charge is
dismissed, if conciliation discussions with the defendant are terminated, or if the EEOC has
not filed a civil suit within 180 days of the filing of the charge. 42 U.S.C. § 2000e-5(f)(1). Once
the plaintiff receives his right to sue notice, he has ninety days within which to file suit in
federal district court. Id. See generally Sape & Hart, Title VII Reconsidered: The Equal
Employment Opportunity Act of 1972, 40 GEO. WASH. L. REv. 824 (
1972
).
Victims of racial discrimination in public and private employment may also seek redress
under 42 U.S.C. § 1981 (
1976
). See Long v. Ford Motor Co., 352 F. Supp. 135, 140 (E.D. Mich.
1972), modified on other grounds, 496 F.2d 500 (6th Cir. 1974). Section 1981 grants to "[aIll
persons" within the United States the same rights to "make and enforce contracts" as are
enjoyed by white citizens. 42 U.S.C. § 1981 (
1976
). Title VII and § 1981 are distinct and
independent causes of action, see Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 461
(1975), and § 1981 plaintiffs enjoy several advantages not allowed Title VII claimants. A
plaintiff prodeeding under § 1981 alone or under both Title VII and § 1981 need not first
submit to the delay ridden administrative procedures of the EEOC. Id. Back pay awards
determining a plaintiff's rights under Title VII, trial courts must resolve
complex substantive, procedural and remedial questions.' Courts first
must ascertain the standards necessary to prove the plaintiffs theory of
racial discrimination. 3 Class actions pose the additional issues of whether
the named plaintiff is the proper class representative 4 and whether a
bifurcated trial is proper. 5 In fashioning the remedial decree, courts must
address the imposition of rigid racial quotas,' the extent of any classwide
back pay award,7 and the validity of provisions which displace or demote
non-minority employees. 8 In Sledge v. J.P. Stevens & Co., ' the Fourth
Circuit addressed these important issues in employment discrimination
litigation.
In Sledge, the named plaintiffs sued individually and on behalf of all
past and present black employees and unsuccessful job applicants at J.P.
Stevens' Roanoke Rapids textile plants."0 The plaintiffs alleged that
Stevens unlawfully discriminated in hiring, job assignments, promotions,
layoff recalls and compensation." At the conclusion-of the non-jury trial, the
district court, finding that the named plaintiffs failed to prove that they
were victims of discrimination, dismissed their individual claims.'" The
court, however, allowed the named plaintiffs to remain as representatives
of the class. 3 The court then found that Stevens' reliance on the subjective
under § 1981 are not limited to two years prior to the filing of the EEOC charge as they are
in Title VII cases. Id. at 460; (...truncated)