XI. Employment Discrimination

Washington and Lee Law Review, Dec 1980

Published on 03/01/80

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XI. Employment Discrimination

XI. Employment Discrimination XI. Employment Discrimination 0 Thi s Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information , please contact , USA - 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)


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XI. Employment Discrimination, Washington and Lee Law Review, 1980, Volume 37, Issue 2,