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On the Legal Front:

Art Gutman
Florida Institute of Technology

Justice OConnors Legacy in EEO Case Law

I was supposed to write my second installment on sexual harassment (Here, There, and Everywhere) with special focus on the European Union. I will put it off for just one more issue. There was nothing left on the 20042005 Supreme Court calendar, so I thought it was perfect timing for the second installment. However, Justice OConnor unexpectedly retired, and I think this is very big news. Since joining the Court in 1980, OConnors footprint is on virtually every important EEO issue. The discussion below samples from several topical areas, illustrating that influence.

Adverse Impact

By 1988, there were well-established rules for adverse impact from prior Supreme Court cases.1 Each case had identifiable and objective causes of adverse impact (cognitive tests, diplomas, height/weight criteria, methadone use). The Supreme Court then addressed two new issues in Watson v. Fort Worth Bank (1988): (a) subjective causes of adverse impact and (b) proving adverse impact when its cause is not easily identified. Only eight justices heard this case (Justice Kennedy was not yet seated), and each agreed on allowing subjective causes of adverse impact. However, speaking for a plurality of herself and Rehnquist, Scalia, and White, OConnor proposed rules changes. She opined that plaintiffs should identify the cause of adverse impact and prove its effect statistically, except that the employer should defend an entire selection process when multiple selection procedures are used and their individual effects cannot be disaggregated. More importantly, she proposed changing the defense to adverse impact from proving job-relatedness to articulating a legitimate reason for the challenged practice(s). In other words, she proposed abandoning the heavier defense burden of persuasion traditionally used in adverse impact cases for a lighter defense burden of production traditionally used in disparate treatment cases such as McDonnell-Douglas v. Green (1973; see discussion of disparate treatment below).

1 Griggs v. Duke Power (1971), Albemarle v. Moody, (1975), Washington v. Davis (1976), Dothard v. Rawlinson (1977), NYC Transit Authority v. Beazer (1979), and Connecticut v. Teal (1982).

It was the next case that altered the rules (Wards Cove v. Atonio, 1989). Although Justice White spoke for a 54 majority, it was the addition of Justice Kennedy and his agreement with OConnors plurality opinion in Watson that dictated the ruling. The facts in Wards Cove were different than the facts in Watson. Nevertheless, White paraphrased OConnors plurality opinion in Watson, and a political war ensured. It began with the aborted Civil Rights Restoration Act of 1990 (CRRA-90), vetoed by President Bush (and nearly overridden by Congress). Basically, Republicans wanted to keep the burden of production and Democrats wanted the other extreme (proof that challenged practices are essential for job performance). The politicians subsequently compromised on Wards Cove (and other issues) in the Civil Rights Act of 1991 (CRA-91). Congress kept OConnors identification and causation provisions (including the caveat on disaggregation) and rewrote the defense burden to require proof of job-relatedness and consistency with business necessity.

I wont belabor these issues any further. Ive done so elsewhere.2 The bottom line, I think, is that CRA-91 got it right. Wards Cove was not an adverse impact case in the traditional sense, but rather, a pattern or practice case in the image of International Teamsters v. United States (1977). I believe the identification/causation provisions prevent pattern or practice cases that use stock statistics from being confused with legitimate adverse impact claims that use flow statistics.3 I also believe the burden of production is appropriate for the stock statistics featured in Wards Cove but not for the more traditional adverse impact claims featuring applicant flow data. 

2 See the On the Legal Front columns in the January 2003 & January 2004 issues of TIP. 
3 An excellent discussion of the relationship between stock and flow statistics and adverse impact and pattern or practice is provided in Ledvinka and Scarpello (1991), Chapter 6.

In the aftermath of Wards Cove and CRA-91, the Supreme Court has not weighed in on a Title VII adverse impact claim. The Court recently tackled adverse impact in the Age Discrimination in Employment Act (ADEA) in Smith v. City of Jackson (2005), but the rules for ADEA are clearly different than those for Title VII.4 What the Supreme Court really needs to do is tackle the issues in Lanning v. SEPTA (1999), in which the 3rd Circuit enforced a much heavier defense than Griggs and Albemarle requiring, in effect, proof that test performance is essential for successful job performance (as proposed by the Democrats for CRRA-90). The heavier defense is fine for physical characteristics such as height or weight (see Dothard v. Rawlinson, 1977). However, no adverse impact claim prior to CRA-91, Supreme Court or otherwise, ever held a defendant to a Dothard-like defense for a standardized test. So there is unfinished business here.

4 The Smith case is discussed in On the Legal Front in the October 2005 issue of TIP. 

Disparate Treatment

The defense burden of production was established in McDonnell Douglas v. Green (1973) and Texas v. Burdine (1981; hence the name McDonnell-Burdine scenario). As established by Justice Powell in McDonnell Douglas v. Green, the sequential burdens in the prima facie, defense, and pretext phases of the trial are (a) presumptive evidence of discrimination by the plaintiff, (b) explanation of the selection decision by the defendant, and (c) proof with a preponderance of direct or indirect evidence by the plaintiff that the explanation in the defense phase is a pretext for discrimination. Everything looked fine until St. Marys v. Hicks (1993). Melvin Hicks had seemingly indisputable indirect (or circumstantial) evidence of pretext and the district court judge still ruled against him (believing he was terminated for personal reasons, not race). The Supreme Court agreed in a 54 decision. OConnor was in the majority (in an opinion delivered by Scalia). Speaking for three other dissenters, Souter opined that the majority ruling turned the McDonnell-Burdine traditions into a useless ritual.

It turned out that Souter was wrong and what the Hicks majority meant is that its up to the trier of fact (judge or jury) to weigh the evidence. In other words, the Hicks majority would have supported the district court judge had he ruled in favor of Melvin Hicks. Then in Reeves v. Sanderson Plumbing (2000)5, Reeves claimed age discrimination in promotion and a jury believed him. Reeves received a nice monetary award ($70,000), but the 5th Circuit reversed based on its reading (or misreading) of Hicks. The Supreme Court then reversed the 5th Circuit in a unanimous opinion in which OConnor explained the meaning of Hicks in plain language. The aftermath here is more promising than in the Watson-Wards Cove saga. Although some circuit courts understood the original meaning of Hicks, others did not. Reeves settled those differences.

5 The Reeves case is discussed in On the Legal Front in the April 2005 issue of TIP.

Mixed Motive

Interestingly, the issue of indirect evidence emerged again in mixed motive cases, and OConnor played a central role here as well. Mixed motive is a form of disparate treatment in which plaintiffs generally present strong direct evidence of an illegal discriminatory motive in the prima facie phase. Instead of rebutting the evidence, employers concede their guilt on the alleged motive but argue that the selection decision challenged (e.g., promotion) is made for other (legal) reasons. The key mixed motive rulings are Price Waterhouse v. Hopkins (1989) and Desert Palace v. Costa (2003).6

6 The Costa case is discussed in On the Legal Front in the July 2003 issue of TIP.

Hopkins was a controversial ruling later addressed in CRRA-90 and CRA-91. Ann Hopkins had strong direct evidence of a gender-based illegal motive (stereotypical sex-based derogatory references7) and claimed sex discrimination in promotion. The company argued it had other (legal) reasons for not promoting her. The two lower courts ruled that Hopkins deserved her promotion because Price Waterhouse did not present clear and convincing evidence that the illegal motive played no role in the promotion decision. In the Supreme Court ruling, three justices voted to try such cases using standard McDonnell-Burdine rules. However, a majority of six disagreed with both the lower courts and the dissenters, ruling that the defense must prove its legal motive but with a lesser standard than clear and convincing evidence (i.e., preponderance of evidence). There were some differences among the majority of six. However, the most important concurrence was OConnors. She opined that because Ann Hopkins lead with direct evidence of an illegal motive, it was appropriate for the defense to answer in kind. Interestingly, OConnor was the only member of the majority who expressed this opinion. In addition, OConnors belief was bolstered by a prior ruling in TWA v. Thurston (1985) in which the Supreme Court unanimously ruled that the McDonnell-Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination.

7 An excellent discussion of the Hopkins case and the broader issue of sex stereotypes is provided in Gutek and Stockdale (2005). 

The immediate aftermath of Hopkins was an edict in the aborted CRRA-90 to hold employers responsible for all remedies when plaintiffs prove an illegal motive plays any role in a selection decision. However, CRA-91 compromised on remedies and permits declaratory or injunctive relief for plaintiffs prevailing on an illegal motive but also permits employers who prove the legal motive to escape remedies specifically associated with a selection decision (e.g., back pay, reinstatement, and other monetary relief). 

The longer-term aftermath of Hopkins was that lower courts read OConnors concurrence as an edict requiring plaintiffs to lead with direct evidence to trigger a mixed motive defense. Then in Costa, the plaintiff (Catharina Costa) presented strong indirect evidence of sex discrimination (termination for violations for which males were treated less harshly). The district court judge gave the jury a mixed motive instruction consistent with CRA-91, and the Supreme Court agreed with the judge in a unanimous opinion delivered by Justice Thomas. OConnor wrote a concurrence to explain that her prior opinion in Hopkins was superceded by a new evidentiary rule in CRA-91. Thus, taken together, the ultimate aftermath of Reeves and Costa is that indirect evidence may be as persuasive as direct evidence regardless of whether presented in the prima facie phase (as in Costa) or the pretext phase (as in Reeves).

A final point to note is that OConnor was in the 5-4 majority ruling in Patterson v. McLean (1989) that limited the scope of Section 1983 of the 13th Amendment in disparate treatment claims. This ruling was overturned in CRA-91, meaning the McDonnell-Burdine rules (and by inference, mixed motive rules) apply in the same way regardless of whether tried under Title VII or constitutionally.

Sexual Harassment

The Supreme Court issued six rulings on sexual harassment between 1986 and 2004.8 OConnors influence here is less noticeable than elsewhere for the simple reason that none of these rulings were close. She did, however, write the unanimous opinion in Harris v. Forklift (1993), which filled a 12-year vacuum between the 1986 ruling in Meritor and three 1998 rulings. Forklift was important because Meritor left several questions unanswered in relation to hostile environment harassment. Some of these questions were not answered until the 1998 Ellerth and Faragher rulings, most notably on employer liability. Nevertheless, Forklift affirmed the definition of hostile harassment established in Meritor, and supported the reasonable person (as opposed to reasonable victim) standard for juries to decide whether hostile harassment has occurred, an issue that arose in the circuit courts between Meritor and Forklift

8 Meritor v. Vinson (1986), Harris v. Forklift (1993). Oncale v. Sundowner (1998). Burlington v. Ellerth (1998), Faragher v. Boca Raton (1998) and Pennsylvania State Police v. Suders (2004). These rulings are discussed in On the Legal Front in the July 2004 and October 2004 issues of TIP.

The harasser in Forklift was Charles Hardy, the company owner and the victim was Theresa Harris, his administrative assistant. Hardy routinely showered Harris (and others) with epithets and proposals for sexual liaisons and frequently asked that change be removed from his pocket. Although Theresa Harris was undoubtedly a victim of hostile harassment, the lower courts favored Hardy on grounds the victims psychological well being was not seriously affected (i.e., no concrete psychological harm). OConnor ruled that Title VII comes into play before harassing conduct leads to a nervous breakdown and that Hardys actions would seriously affect a reasonable persons psychological well being. She then reaffirmed the definition of hostile harassment from Meritor (unwelcomed severe and pervasive sex-based behavior that interferes with the ability to perform ones job duties). OConnors definition of hostile harassment and the reasonable person standard were subsequently reiterated in the four Supreme Court rulings that followed.

Americans With Disabilities Act (ADA)

There were eight Supreme Court ADA rulings between 1999 and 2002.9 Only one was close (Barnett v. US Air, 2002). OConnor played a key role in Barnett, but arguably, an even bigger role in three other cases with stronger majorities (Sutton v. UAL, 1999, Murphy v. UPS, 1999, and Toyota v. Williams (2002). I featured legally blind twin sisters and Murphy featured a hypertensive truck mechanic who was required to road test the trucks he fixed. The common issue in these cases was an EEOC regulation requiring that assessment of significant restriction of major life activities be made in the nonmitigated state (i.e., without corrective lenses or medication). OConnor struck down the regulation in both cases, sending an apparent deathblow to ADA plaintiffs. However, both rulings came with a blueprint for stronger claims of being disabled within the meaning of the ADA. Sutton also featured an EEOC regulation on working as a major life activity, which OConnor addressed both here and in Toyota v. Williams.

9 Cleveland v. Policy Management (1999), Sutton v. United Airlines (1999), Albertsons v. Kirkingburg (1999), Murphy v. UPS (1999), Martin v. PGA Tour (2000), Toyota v. Williams (2002), Barnett v. US Air (2002), and Chevron v. Echazabal (2002). The first four cases are discussed by Gutman (2000) in the January 2000 issue of TIP and Echazabal is discussed by Donald L. Zink in the July 2002 issue of TIP. The other cases are discussed in On the Legal Front in the April 2001 (Martin), January 2002 (Williams), and July 2002 (Barnett) issues of TIP.

There are three ways (or prongs) to be disabled within the ADA. Prong 1 requires a current physical or mental impairment that significantly restricts a major life activity, and the individual is capable of performing all essential job functions with or without reasonable accommodation. Prong 2 requires history of such a disability, and Prong 3 requires being regarded as having a disability. In Sutton, the twins had 20-200 vision without correction and 20-20 with correction. They were already flying smaller commuter planes and wanted to fly the bigger commercial jets. They were in compliance with a Federal Aviation Authority (FAA) regulation (correctable vision to 20-20 per eye) but not with a stiffer UAL rule (minimum uncorrected vision of 20-100 per eye). In Murphy, the truck mechanic was in violation of a Department of Transportation (DOT) regulation excluding individuals with high blood pressure from driving large trucks. The plaintiffs in both cases made the Prong 1 argument that they were significantly restricted in the nonmitigated state but could perform all essential functions in the mitigated state. 

With the EEOC regulation disposed of, the Prong 1 claims were neutralized by the very fact that all essential job functions could be performed with mitigation (meaning there were no significant restrictions in the mitigated state). However, at the same time, OConnor cited two ways plaintiffs may be significantly restricted despite mitigation. She noted, for example, that medication for diabetes might only partially alleviate the illness, meaning the individual is still significantly restricted. She also noted that medication might have significantly restrictive side effects. OConnors words were then used in several circuit court cases where plaintiffs taking medication were able to prove their Prong 1 claims.10

10 See for example EEOC v. Routh (2001) and Lawson v. CSX (2001).

Unlike the twins, Vaughan Murphy did not have a viable Prong 3 claim because his exclusion was by a federal regulation, not a company policy. On the other hand, the twins had a potentially strong Prong 3 claim because the UAL policy exceeded a federal regulation. Nevertheless, the twins made an obvious mistake by claiming they were regarded as being disabled with respect to working, not seeing, an oversight noted by OConnor in her ruling. Because the EEOC regulation on working requires exclusion for a wide variety of jobs, the twins lost on their Prong 3 claim because they were already flying smaller planes (meaning they were not broadly excluded from jobs in their profession). OConnor also challenged the validity of working as a major life activity, warning it is circular reasoning to make such a claim in an employment case. However, she refrained from ruling on the regulation and addressed it again in Toyota v. Williams (2002). 

Toyota v. Williams featured carpal tunnel syndrome. In prior carpal tunnel cases, plaintiffs routinely claimed significant restriction for the major life activity of working and routinely failed (e.g., McKay v. Toyota, 1997). Using a different route, Ella Williams, who could not perform two of four essential job functions, claimed her symptoms significantly restricted her ability to perform manual tasks associated with the tasks she could not perform. The 6th Circuit ruled for Williams, but the Supreme Court overturned in a unanimous opinion written by OConnor. OConnor ruled that Ella Williams was, in effect, circumventing Sutton by focusing on manual tasks associated with only her job. She ruled further that manual tasks are a major life function, but they must be central to most peoples lives (e.g., bathing, brushing teeth, household chores, etc.). Williams lost because she could perform the basic central tasks. OConnor also issued a stern warning against future carpal tunnel claims.

In Barnett v. US Air (2002), Robert Barnett, an injured cargo worker, could no longer perform heavy lifting and transferred to a mailroom job. He later lost that job when US Air put it up for open bidding under its unilaterally imposed seniority plan. Requests for accommodation that oppose collectively bargained seniority agreements (CBAs) have routinely been deemed as unreasonable as a matter in the lower courts. The question in this case was whether to accord the same status to a company-imposed seniority plan. Two justices (Scalia and Thomas) argued that unilateral plans are as legitimate as CBAs and two others (Souter and Ginsburg) argued that Barnetts requests for accommodation were reasonable. This left four justices who believed that unilateral plans are generally as valid as CBAs, unless they are frequently altered or contain questionable disclaimers. OConnor opined that the key issue was whether a plan is legally enforceable. Nevertheless, she agreed to joined Breyer, Rehnquist, Stevens, and Kennedy to form a majority because she believed their solution will often lead to the correct outcome and it was important that a majority of the Court agree on a rule when interpreting statutes.

The Barnett ruling is just another example of OConnor serving on the winning side of a close 54 ruling. The other three rulings are far more important. In those rulings, OConnor defined what plaintiffs must do to prove they are disabled within the meaning of the law. She also signaled to the lower courts that working is a questionable major life activity and that carpal tunnel syndrome is a questionable impairment. 

Reverse Discrimination Rulings

Between 1978 and 2003, the Supreme Court issued 15 so-called reverse discrimination rulings.11 OConnor was present for 12 of them (all but Regents v. Bakke, 1978, United Steelworkers v. Weber, 1979, and Fullilove v. Klutznick, 1980). She influenced all 12 of these rulings, as well as subsequent interpretations of the three cases she did not serve on. Her sphere of influence in this domain covered three major topics: (a) strict scrutiny on government set aside programs for minority (MBEs) and disadvantaged (DBEs) business enterprises, (b) voluntary affirmative action based on remedial needs, and (c) voluntary affirmative action based on diversity as a compelling government interest in the strict scrutiny test. 

11 Reverse discrimination is discussed in On the Legal Front in April 2003, July 2003, October 2003, and April 2004 issues of TIP.

The strict scrutiny test requires a compelling government interest served by a narrowly tailored solution. In comparison, the moderate scrutiny test requires an important government objective served in a substantially related way. In Fullilove v. Klutznik (1980; before OConnor), six justices supported a federal MBE set aside program, with three basing their opinion in the heavier, strict scrutiny test and the other three basing their opinion on the lighter, moderate scrutiny test. In Metro v. FCC (1990), OConnor was on the losing end of a 54 ruling granting the federal government moderate scrutiny for its set aside programs. This, however, was a temporary precedent. In the prior year, OConnor delivered the 54 majority ruling in City of Richmond v. Croson (1989) holding states and municipalities to strict scrutiny for their set asides. Then in Adarand v. Pena (1995), she delivered the 54 majority ruling that overturned the 1990 Metro ruling and held a federal (DOT) DBE program to the same strict scrutiny standard as states and municipalities were held to in Croson.

The Adarand ruling was controversial and had some observers talking about the death of affirmative action. More sober minds realized that OConnor did not strike down the DBE program but rather remanded for evaluation under strict scrutiny what the lower courts previously evaluated under moderate scrutiny. OConnor wrote that strict scrutiny is strict in theory, but not fatal in fact. She outlined six criteria for set aside programs in Croson, and reiterated those criteria in Adarand. The Adarand case took several more years to resolve, giving the DOT more than enough time to alter the DBE program to meet OConnors criteria. Ultimately, the 10th Circuit ruled that the modified program passed strict scrutiny and the Supreme Court declared it a spoiled case and declined to review it any further.

The use of affirmative action plans (AAPs) for remedial needs was first addressed in United Steelworkers v. Weber (before OConnor). Weber was a 5-2 ruling establishing a Title VII parallel to strict scrutiny (manifest workforce imbalance served by a temporary, nontrammeling solution). It was the first time the Supreme Court supported a quota solution (in preferential assignment to training based on an egregious violation by a union that refused to train Blacks). The rulings in two follow-up cases were more contentious. In Wygant v. Jackson (1986), a 54 majority struck down a school board amendment to a seniority agreement, and then two nontenured Black teachers were retained and two tenured White teachers were laid off. It was the first time a majority of five justices endorsed strict scrutiny in a reverse discrimination case. The ruling (by Powell) also used strict scrutiny language and Title VII terminology (directly from Weber) interchangeably. In Johnson v. Transportation (1987), a 63 majority used Weber to support promotion of a female over a male based, at least in part, on an AAP. As in Weber, there was a manifest imbalance. However, unlike Weber, there was no evidence of any specific egregious violation. 

OConnor was in the 54 majority in Wygant and spoke separately to explain why role modeling theory (i.e., the need for Black teachers to teach Black students) is not a compelling interest, whereas racial diversity might be sufficiently compelling. In effect, she signaled her later opinion in Grutter v. Bollinger (2003; see below). Johnson was noteworthy because Justice White, a member of the majority in Weber, defected because it was an egregious violation clearly caused the manifest imbalance in Weber, but there was no evidence presented of such a violation in Johnson. OConnor wrote separately to oppose Whites view, supporting the Santa Clara Transportation Agencys AAP because the statistical disparity was sufficient for a prima facie Title VII case, and the AAP, as implemented, satisfied the requirements of Weber and Wygant.

The Grutter case (along with Gratz v. Bollinger, 2003) was a throwback to the Supreme Courts first reverse discrimination ruling in Bakke (1978). In Bakke, Justice Powell ruled that diversity is a compelling government interest in a strict scrutiny analysis and that it is possible to narrowly tailor a medical school admissions program to that interest by treating minority status (and other factors such as social and economic disadvantage) as plus factors. However, he was only one of nine justices who expressed this view. The issue laid dormant for 25 years. In the interim, some lower courts treated Bakke as bad law (see for example Taxman v. Piscataway, 1996 and Hopwood v. Texas, 1996). However, OConnor, considered by many a disciple of Powells, wrote the opinion for a 54 majority in Grutter signaling that Bakke was good law.

The Grutter and Gratz cases were connected, involving the same university (Michigan) and two admissions programs (law school and undergraduate admissions). The Grutter ruling supported the law school plan and the Gratz ruling struck down the undergraduate plan. Considering both cases together, only one justice (Thomas) questioned whether diversity is a compelling interest. The law school was supported because five justices believed (in OConnors words) that it bears the hallmarks of a narrowly tailored plan. The Gratz ruling was, effectively, 62 with one abstention (Thomas) that the undergraduate plan was not narrowly tailored. OConnor went to great pains to explain in the Grutter ruling why the law school plan was narrowly tailored and the undergraduate plan was not.

OConnor contributed to other reverse discrimination rulings. She was in the 63 majority in Firefighters v. Stotts (1984) supporting a bona fide seniority system (BFSS) over a consent decree in a case involving racial preference in termination. She was also in the 54 majority in Martin v. Wilks (1989), a controversial ruling supporting an after-the-fact collateral attack to a consent decree by a union representing White firefighters (a ruling was later overturned in CRA-91). Perhaps most importantly, she was ardently opposed to quota remedies, the exception being those rare cases where there is an egregious violation, identifiable victims of that violation, and little possibility of less intrusive solutions. Accordingly, she was the deciding vote in favor of a court-ordered remedy for a pattern or practice violation in Sheet Metal Workers v. EEOC (1986), dissenting only insofar as it affirms the use of mandatory quotas, and was on the losing end of a 54 ruling in United States v. Paradise (1987) because she believed a quota solution was applied when less intrusive solutions were available. Finally, although she joined the 63 majority in Firefighters v. Cleveland (1986), she issued a strong warning against quotas and goals in that case as well.

Conclusions

The cases cited above illustrate, but do not exhaust Justice OConnors influence on EEO case law. However, Ive used too many words already. In addition, I will keep my conclusions brief. In the EEO arena, I think Justice OConnor will be remembered for being in the majority in more 54 cases than anyone else and for connecting her thoughts across cases better than anyone else. On substantive issues, I think she will be remembered most for her role in the reverse discrimination cases, her ADA rulings, and her role in the Watson-Wards saga. Whether I agreed or disagreed with them, I enjoyed reading her rulings immensely and will miss them.

References

     Gutek, A. & Stockdale, M. S. (2005). Sex discrimination in employment. In F. J. Landy (Ed.) Employment discrimination litigation: Behavioral, quantitative, and legal perspectives. San Francisco: Jossey-Bass.
     Ledvinka, J. & Scarpella, V. G. (1991). Federal regulations of personnel and human resource management. (2nd Ed.). Boston: PWS-Kent. 

Cases Cited

Adarand v. Pena (1995) 515 US 200.
Albemarle Paper Co. v. Moody (1975) 422 US 405.
Barnett v. US Air (2002) 535 US 391.
Burlington Industries v. Ellerth (1998) 524 US 742.
Chevron v. Echazabal (2002) 536 US 73.
City of Richmond v. Croson (1989) 488 US 469.
Connecticut v. Teal (1982) 457 US 440.
Desert Palace v. Costa (2003) 539 US 90.
Dothard v. Rawlinson (1977) 433 US 321.
EEOC v. Routh (CA6 2001) 246 F.4d 850.
Faragher v. City of Boca Raton (1998) 524 US 808.
Firefighters v. Cleveland (1986) 48 US 501.
Firefighters v. Stotts (1984) 467 US 561.
Fullilove v. Klutznick (1980) 448 US 448.
Gratz v. Bollinger (2003) 539 US 244.
Griggs v. Duke Power (1971) 401 US 424.
Grutter v. Bollinger (2003) 539 US 306.
Harris v. Forklift (1993) 510 US 17.
Hopwood v Texas (CA5 1996) 78F.3d 932.
International Brotherhood of Teamsters v. United States (1977) 490 US 228.
Johnson v. Transportation Agency (1987) 480 US 616.
Lanning v. SEPTA (CA3 1999) 181 F.3d 478.
Lawson v. CSX (CA7 2001) 245 F.3d 916.
Martin v. PGA Tour (2000) 532 US 661.
Martin v. Wilks (1989) 490 US 755.
McDonnell Douglas v. Green (1973) 411 US 792.
McKay v. Toyota (CA6, 1997) 110 F.3d 369.
Meritor v. Vinson (1986) 477 US 57.
Metro Broadcasting v. FCC (1990) 497 US 547.
Murphy v. UPS (1999) 527 US 516.
NYC Transit Authority v. Beazer (1979) 400 US 568.
Oncale v. Sundowner (1998) 523 US 75.
Patterson v. McLean Credit Union (1989) 491 US 164.
Pennsylvania State Police v. Suders (2004) 477 US 57.
Price Waterhouse v. Hopkins (1989) 490 US 228.
Reeves v. Sanderson Plumbing (2000) 530 US 133.
Regents v. Bakke (1978) 438 US 265.
Sheet Metal Workers v. EEOC (1986) 478 US 421.
Smith v. City of Jackson (March 30, 2005) No. 03-1160.
St. Marys Honors Center v. Hicks (1993) 509 US 502.
Sutton v. United Airlines (1999) 527 US 471.
Taxman v. Piscataway (CA3 1996) 91 F.3d 1547.
Texas Dept. of Community Affairs v. Burdine (1981) 450 US 428.
Toyota v. Williams (2002) 534 US 184.
Trans World Arilines v. Thurston (1985) 469US 111.
United States v. Paradise (1987) 480 US 149.
United Steelworkers v. Weber (1979) 443 US 193.
Wards Cove v. Atonio (1989) 490 US 642.
Washington v. Davis (1976) 426 US 229.
Watson v. Fort Worth Bank (1988) 487 US 977. 
Wygant v. Jackson Board of Education (1986) 476 US 267.

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