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Chapter 7’s four rewritten cases deal with proof of systemic disparate treatment and impact discrimination. The rewritten Sears opinion rejects expert testimony that blamed women’s lack of interest in commission-based sales for the dearth of women employed in those jobs, characterizes this testimony as sex stereotyping, and holds that courts may not rebut strong statistical showing by plaintiffs in pattern or practice cases with sex stereotypes. Rewritten AFSCME exposes implicit bias in the market forces causing a pay gap between men and women, and narrates the real-life stories of the women whose pay was substantially lower in jobs of equal value to those of male colleagues. Rewritten Ricci holds that white plaintiffs who challenge an employer’s failure to use a test with a disparate impact on black and Latino employees must show that the employer lacked an actual and reasonable belief that it would be subject to liability for disparate impact if it used the test. Rewritten Wal-Mart certifies a large class of female employees, and holds that a showing of intent is not necessary when the statistics demonstrate discriminatory outcomes and the employer fails to rectify the problem.
Chapter 6 concludes that discrimination based on sexual orientation, gender identity, or gender expression is sex discrimination under Title VII. In Etsitty v. Utah Transit Authority, the Tenth Circuit held that a bus company did not violate Title VII when it fired a transgender driver for using women’s restrooms along her route. The court concluded that discrimination based on transgender status does not violate Title VII’s prohibition of discrimination “because of sex,” and that the plaintiff was fired because of bathroom use, not discrimination. The rewritten opinion reverses course: the employer’s behavior violated both Title VII and the Equal Protection Clause. Hively v. Ivy Tech Community College held that discrimination based on sexual orientation is illegal sex discrimination. The rewritten opinion arrives at the same conclusion, but offers a more humanistic lens through which to view the legal question posed. The rewritten opinion relies on several legal theories to support its conclusion, including but-for causation, sex stereotyping, sex-plus, associational (or relationship) discrimination, and a unique use of the motivating factor provision in Title VII.
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