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LAW 2221
2019 T3
Amended Aassignment Appendix F: Business Torts: Employment Discrimination
DFTA (2607721)
MTCA (272070)
XTIA (271919)
11 February 2019
[L]egal doctrine evolves.1
There is little doubt that
unconscious discrimination
Plays a significant role in
decisions about hiring, promoting,
firing, and the other benefits and
tribulations of the workplace.2
11 February:
In the area of business torts, we have now addressed the relevance of state of mind to business
torts and fraud. We will now move into an exploration of one of the most prevalent business
Zarda, et al. v. Altitude Express, 883 F.3d 100, 107 (2d Cir. 2018).
Melissa Hart, Subjective Decisionmaking and Unconscious Distrimination, 56 ALA. L. REV. 741, 745 (2005). See also
Anthony Greenwald & Linda Hamilton Krieger, Implicit Bias: Scientific Foundations, 94 CALIF. L. REV. 945 (2006);
Christine Jolls & Cass R. Sunstein, The Law of Implicit Bias, 94 CALIF. L. REV. 969 (2006); Linda Hamilton Krieger, The
Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47
STAN. L. REV. 1161 (1995); Aziz Z. Hug, What is Discriminatory Intent? 103 CORNELL L. REV. 1211 (2018);
Nicole E. Negowetti, Navagating the Pitfalls of Implicit Bias: A Cognitive Science Primer for Civil Litigatiors, 4 ST.
MARY’S J. LEGAL MAL. & ETHICS 278 (2014); Natalie Bucciarelli Pedersen, A Legal Framework for Uncovering Implicit
Bias, 79 U. CIN. L. REV. 97 (2010); Michael Selmi, The Paradox of Implicit Bias and a Plea for a New Narrative, 50 ARIZ.
ST. L.J. 193 (2018). But cf. Gregory Mitchell & Philip E. Tetlock, Antidiscrimination Law and the Perils of
Mindreading, 67 OHIO. ST. L.J. 1023 (2006) ( questioning the scientific bases for conclusions about implicit cognitive
torts: Employment Discrimination. While this area is based on the U.S. Constitution, it is now
statutory and embodied primarily in Title VII of the United States Code. While we will focus on
Federal statutes, you should keep in mind that many states have their own employment
discrimination statutes. As evidenced by the above quote from the Zarda decision, legal
doctrine evolves. We will, therefore, be studying the evolution of the issues in employment
This area of the law has come into its own prominence with the Harvey Weinstein story and the
resulting “MeToo” movement. The stories of sexual harassment and hostile work
environments are swirling around our culture daily. Therefore, you as business people and
future managers need to have a good sense of the volatile nature of your work environments
and how you can prevent such incidents because they destroy the lives of people and the
reputations and good will of businesses. Our discussions of this area will also allow us to start a
brief discussion of organizational compliance and ethics programs.
This is an extremely important are of the law for business people because it seeks to address
broad social ills in the employment setting. Accordingly, Title VII’s proponents saw
discrimination as a broad social problem deserving of the creation of the EEOC as a strong
administrative agency.3
Be prepared to think about and discuss Professor Hart’s quoted assertion above from the
Alabama Law Review.
This Assignment Appendix also contains your Third Writing Assignment. See below.
Required Readings:
1. Text: Pp. 396-413, 419-424.
2. Equal Employment Opportunity Commission, et al., v. R.G. & R.G. Harris Funeral Homes, Inc.,
884 F.3d 560 (6th Cir. 2018), Petition for Cert. docketed sub nom R.G. & G.R. Harris Funeral
Homes v. Equal Employment Opportunity Commission, July 24, 2018.4
3. Title VII: 42 U.S.C. §§ 2000e, et seq.5
Important Readings That I Will Handle in Class:
1. Holt v. Hobbs, 136 S. Ct. 853 (U.S. 2018).
2. Burwell v. Hobby Lobby Stores, Inc. et al, 134 S. Ct. 2751 (2014).
See Julie C. Sulk, Procedural Path Dependence: Discrimination and the Civil-Criminal Divide, 85 WASH. U.L. REV.
1315, 1351 (2008).
This is a landmark case. Discussing this case will give us a good opportunity to revisit and discuss in more depth
certain Constitutional principles and rules and some Administrative Law. Read this case and be prepared to discuss
it with me. We will focus on it extensively in class.
Posted on Canvas.
3. Zarda, et al., v. Altitude Express, Inc., 2018 WL 1040820 (2d Cir. Feb. 26, 2018) (sexual
orientation discrimination covered under Title VII in a non-religious setting) (This case precedes
the Harris Funeral Homes case.).
4. Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir.), cert. denied 138 S. Ct. 557 (2017)
(divided panel held that sexual orientation was not covered under Title VII).
5. Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017) (sexual orientation
covered under Title VII).
6. Isaacs v. Felder Services, LLC, 143 S.Supp.3d 1190, 1194 (S.D. Ala. 2015) (“To the extent that
sexual orientation discrimination occurs not because of the targeted individual’s romantic or
sexual attraction to or involvement with people of the same sex, but rather based on her or his
perceived deviations from ‘heterosexually defined gender norms,’ this, too is sex discrimination,
of the gender-stereotyping variety.”).
Third Writing Assignment:
This is your third and final writing assignment. It is worth 10 points toward your final grade. Put your
submission on a word document and e-mail it directly to me by no later than Sunday, 17 March at noon.
Your submission should be no longer than 5 pages double-spaced using 12 pt. font.
Fact Pattern:6
You are the HR Director of a group of professional Psychologists who provide grief-counseling services to
people who have recently lost loved ones and who have experienced a wide range of traumas in their
lives and who need grief counseling. The practice is an LLC in Dothan and it is comprised of four (4)
Ph.D. Psychologists and ten (10) staff members. The staff members initially deal with the clients during
the in-take process and then they refer them to the Psychologists who have the most experience dealing
with the types of issues posed by the various clients.
The services provided are very intimate and personal and they require a warm, empathetic relationship
between the clients, the staff, and the Psychologists. All of the Psychologists are members of a religious
denomination which is rather fundamental. That denomination has a firm foundational belief in God.
One of the staff members informs you that she is going to have a breast augmentation because, during
her time off, she dances at a local gentleman’s club and that she believes that she can make more
money if she has the breast augmentation.
You inform the Managing Member of the LLC about this staff member’s decision and he adamantly
objects. He informs you that one of the primary tenants of the faith of all of the Psychologists in the
practice is that a person should cherish the body that God gave them and not make any changes in it.
He schedules a meeting of all of the Psychologists in the practice and they all unanimously feel that the
female staff member is contemplating violating a fundamental tenant of their faith; that she will be a
disruption to clients who come to their practice for solice and counseling; and that she will not present
the professional image that they want to maintain for their practice.
The basic issue in this hypothetical came from a hypothetical posed to me by a former female student in one of
my ethics classes. I have supplied the hypothetical facts to frame that issue.
He instructs you to advise the female staff member of this and, if she does not relent and change her
mind about the augmentation, to advise her that she is terminated. You advise him of the Harris
Funeral Homes case out of the Sixth Circuit and he advises you that the facts, the analyses, and the
rationale7 of that decision do not govern this situation, that Dothan is in the Eleventh Circuit, and that
the Harris case has not even been decided by the United States Supreme Court.8
Do you agree with his perspectives? Why? Provide your analysis and rationale.
Non-Required Perspective Readings:
1. Leora F. Eisenstadt & Jeffrey R. Boles, Intent and Liability in Employment Discrimination, 53
American Business Law Journal 607 (2016) (exploring different levels of state of mind to prove
actionable disparate treatment).
2. Aziz Z. Hug, What is Discriminatory Intent? 103 Cornell Law Review 1211 (2018).
3. Stephanie Bornstein, Reckless Discrimination, 105 California Law Review 1055 (2017).
4. Jessica A. Clarke, Explicit Bias, 113 Northwestern University Law Review 505 (2018).
5. Douglas NeJaime & Reva Siegel, Religious Exemptions and Antidiscrimination Law in Masterpiece
Cakeshop, 128 Yale Law Journal Forum 201 (2018).
6. Leslie Kendrick & Micah Schwartzman, The Etiquette of Animus, 132 Harvard Law Review 133
7. Laura Palk and Shelly Grunsted, Born Free: Toward an Expansive Definition of Sex, 25 Michigan
Journal of Gender & Law 1 (2018).
8. Note, Adam K. Hersh, Daniel in the Lion’s Den: A Structural Reconsideration of Religious
Exemptions from Nondiscrimination Laws Since Obergefell, 70 Stanford Law Review 265 (2018).
9. Edward G. Phillips and Brandon L. Morrow, Title VII in Transition, 54 Tennessee Bar Journal 36
(June, 2018).
10. Saul Levmore, Title VII to Tinder: Law’s Antidiscrimination Asymmetry and Occasional Market
Superiority, 68 Alabama Law Review 877 (2017).
11. Jessica A. Clarke, Frontiers of Sex Discrimination Law, 115 Michigan Law Review 809 (2017).
12. Douglas Laycock, The Wedding-Vendor Cases, 41 Harvard Journal of Law & Public Policy 49
13. John Husband, Circuit Courts Split on Title VII Coverage for Sexual Orientation Discrimination, 46
Colorado Lawyer 40 (Nov. 2017).
14. Deborah A. Widiss, Intimate Liberties and Antidiscrimination Law, 97 Boston University Law
Review 2083 (2017).
15. Eric C. Surette, Discrimination on Basis of Sexual Orientation as Form of Sex Discrimination
Proscribed by Title VII of Civil Rights Act of 2964, 28 American Law Reports, Fed.3d Art. 4 (2018).
16. Caroline Mala Corbin, Intentional Discrimination in Establishment Clause Jurisprudence, 67
Alabama Law Review 299 (2015).
The legal term for this is ratio decidendi.
He also has his law degree from Northwestern University School of Law in Chicago.
Copyright 2019
Orrin K. Ames III

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