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Week 2 Lecture Notes

by: Edward Avakian

Week 2 Lecture Notes Crm/Law C120

Edward Avakian
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These are all the notes covered in lecture during Week 2
Law and Inequality
Sora Han
Class Notes
Crim, criminology, Law, inequality




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This 7 page Class Notes was uploaded by Edward Avakian on Monday April 4, 2016. The Class Notes belongs to Crm/Law C120 at University of California - Irvine taught by Sora Han in Spring 2016. Since its upload, it has received 20 views. For similar materials see Law and Inequality in Criminology and Criminal Justice at University of California - Irvine.

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Date Created: 04/04/16
Crim C120 Lecture 2 Week 2 04/05/2016 ▯ What is inequality?  Please refer to pages 60-61 for examples of hypothetical situations when the law is invoked to address inequality  How should the law understand inequality? ▯ ▯ Claiming inequality before the law  Three basic elements to even think about asking the law to recognize a claim of inequality o 1) A claimable right  a right that gives you a certain form of treatment that others are entitled to as well  something to hang their claim on, and that is a right o 2) An act committed by a private or public entity  there was something done, something identifiable that public or private entity did that had an effect on you  that effect on you is to have been treated unequally  need to identify: who, when, what o 3) Proof that this act is discriminatory  perhaps the trickiest of the three elements  what constitutes proof?  What kinds of proof ensure that an act was discriminatory?  ^^things that have been litigated ▯ ▯ 1) A claimable right  there must be a constitutional right or a statutory right protecting the individual from discrimination or unequal treatment o EXAMPLES: th  1) 14 Amendment of the US  2) CA Constitution, Section 8: A person may not be disqualified from entering or pursing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin  3) Title VII of the 1964 Civil Rights Act (federal statute that is considered the equivalent of the CA Constitution; lays out anti-discriminatory principles in the employment arena) ▯ 2) An act committed by a private or public entity  the act must take place in the context of civic and social institutions regulated by statutes and/or constitutions, including but not limited to: o employment, housing, education, voting, access to public accommodation, distribution of public services or benefits ▯ 3) Proof that this act is discriminatory  BUT…  Discrimination per se is not illegal or unconstitutional – the discrimination must be based on a characteristic that the law is particularly concerned to protect  These characteristics are: race, ethnicity, nationality, religion, gender, sexual orientation, and disability o Title VII tries to take up and devise a legal remedy for o Proof of failure to hire even though there were qualified applicants in the pool who happened to be black or women – can be a form of proof in a Title VII case o Not all forms of discrimination are actionable under our law  The law is particularly concerned with forms of discrimination that has a history and social pattern of discrimination ▯ ▯ What should count as proof? ▯ ▯ Framework of Proof: Intentional vs. Unintentional Discrimination  What kind of intent can and should the law be expected to regulate? Malicious intent? Benign intent to differentiate? Or completely neutral intent that produces unequal effects? o EX) Employer has email record where he says any number of vary sexist, misogynist things of women employees, skepticism as to whether women can do the job  proof of intent to discriminate o Intent of the actor is required  This dichotomy between intentional and unintentional discrimination  Tricky and troubling effects of dichotomy intent to discriminate is benign; not motivated by intent that is malicious (meaning that these relatively disempowered, marginalized social groups are seen as inferior, but actually that they are affirmatively incorporated) o Whether affirmative action policies constitute intentional discrimination that is welcoming or incorporative  law for the most part has said that whether the intent is benign or affirmative, it is still prohibited ▯ ▯ Griggs (1971): conscious intent not necessary to bring a claim under Title VII  “The Act (Title VII of the Civil Rights Act of 1964) proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.”  The business practice in question will be inferred as discriminatory if the employer cannot show the practice is related to functioning of the business  *Key in Title VII claim making  business or employer can show that there was some business related reason for this practice that was being challenged, then that could possibly negate the claim or charge of discrimination by plaintiff o EX) better customer service, more productivity, increasing worker morale ▯ ▯ Washington v Davis (1976): disproportionate impact is not sufficient proof to bring a claim under the 14 amendment  “Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution. Standing alone, it does not trigger the rule, that racial classifications are to be subject to the strictest scrutiny…”  Case where a police or fire department were challenging the promotion practices of the department; using a verbal exam and it was proven that African Americans did worse on the exam  Need more to prove discrimination ▯ ▯ How can these two cases coexist? Why would Supreme Court be okay in interpreting cases under Title VII to go forward as opposed to the case th dealing with 14 amendment?  Neutrality plus disproportionate impact = legitimate prove under Griggs, not in Washington v Davis  One comes from the Constitution, a right that is in theory universally applicable and claimable in any context where the argument can be made that the State failed to provide equal protection of the law; Title VII, a state statute, are based on certain identification through a political process through a social problem that the people have sort of put forward as something that the federal government should intervene on actively. As opposed to an amendment in the Constitution, there has to be the basic elements in order to claim constitutional rights. Title VII = discreet class of individuals (workers, would-be employees). Legal strategy had many different fronts and strategies; some were panning out or developing in more promising ways than others; for a brief period of time, Title VII provided more protection to those in the private employment context. ▯ ▯ Feeney (1979): intent requires proof that act was committed “because th of” in the 14 amendment context  “Discriminatory purpose,” however, implies more than intent as volition or intent as awareness of consequences. It implies that the decision maker, in this case a state legislature, selected or reaffirmed a particular course of action at least in part “because of,” not merely “in spite of,” its adverse effects upon an identifiable group.  State statute the provides public benefits to veterans; women filed a lawsuit; claim that the statute doesn’t provide anything to women; veterans were traditionally masculine and consisted of males; it is in fact producing a disproportionate impact  At this particular time, it was absurd for state legislature to say that they knew that this was going to have a disproportionate impact; issue Supreme Court had to consider was whether or not the state had the intent to discriminate against women  Supreme Court said sorry, even the unchallenged knowledge that veteran = man is undisputed by any of the parties; that knowledge was part of the design and intent in enacting this statute; doesn’t show evidence that the statute was enacted because of the intent to discriminate  Reiterate how fixated the Supreme Court is on proof of intent ▯ Summary:  Under 14 Amendment, you need intent or else it’s difficult to prove discrimination  Under Title VII, you need the prema facie (based on the first impression; accepted as correct until proved otherwise) to make it easy to prove discrimination ▯ ▯ Title VII is important because the law acknowledges discrimination for which there is no proof of intent ▯ ▯ Title VII: Inferring discrimination  When there is no explicit evidence that an employer used racial bias in making an adverse decision, Title VII has innovated shifting burdens of production between the employer and employee/applicant to increase the chance that prima facie claims can be made th o What replaces proof of intent in 14 Amendment is a structure of legal production  Question: What is the reasoning behind this innovation in Title VII claim-making? o Tries to incentivize that employee or applicant to challenge or bring to light that employers are participating in decision making o To equalize that relationship between employer/employee or applicant and to allow/incentivize claim making so that the practice of discriminatory hiring/firing can be brought to light for the federal government and that it would have a ripple effect where employers would voluntarily scrutinize their hiring/firing practices in order to avoid getting dragged into a Title VII case ▯ ▯ Making a Prima Facie case (McDonnell Douglas case)  Stage 1: Burden of production on plaintiff/employee/applicant o Plaintiff has initial burden, even if it’s to file a claim o Start off on offensive, defendant will respond  Stage 2: Burden of production on defendant/employer o Shifts to defendant after, who Title VII will tell exactly what is needed to rebut what plaintiff stated; reasoning behind accused segregation/discrimination/etc.; showing of proof  Stage 3: Burden of production on plaintiff/employee o Plaintiff still has opportunity to show additional proof or evidence to show reasons defendant/employer has are not relevant ▯ ▯ <MORE IN DEPTH BELOW> ▯ ▯ Stage 1: Plaintiff  Plaintiff must show that: o 1) P is a racial minority o 2) P applied and was qualified for a position o 3) Despite qualifications, P was rejected o 4) After P was rejected, the position remained open  If P doesn’t show these four things, then he has failed to make a prima facie case  If P does show these four things, then the burden of production shifts to Defendant ▯ ▯ Stage 2: Defendant  To challenge P’s prima facie case, the D then must show evidence supporting some legitimate, nondiscriminatory reason for adverse employment decision o If D fails to show this evidence, then he fails to challenge P’s prima facie case, and the case goes forward with the inference that there was discrimination o If D does show this evidence, then the burden of production shifts back to P ▯ ▯ Stage 3: Plaintiff  To challenge D’s defense, P must show evidence that D’s legitimate reason was “pretext,” for example: o 1) employer’s treatment of employee before the termination; and/or o 2) that other white employees in similar situation were promoted or not fired  If P fails to show this evidence, his prima facie case does not go any further because the inference that there was discrimination is negated by a “neutral” reason  If P does show this evidence, then the burden of production shifts back to D, etc. ▯ ▯ McDonnell Douglas case  Reasoning: shifting of burden of production should favor the establishment of the full facts relevant for the case to come to light for the decision-maker  1) idea of decision that reflects socio-ideological ideas at the time: relationship between employer/employee  2) legal process of facilitating the truth coming out ▯ ▯ **Title VII and its underlying philosophy of burden shifting is not necessarily reflective of that ideological conflict that we see in our law over time but is more supported that the law in its adversarial structure in its litigation facilitates evidence being brought to court that will be able to make judgment based on truth ▯ ▯ Inferring discrimination grounded in examining the employer’s reasons is a “scheme of proof” that is supposed to replace cases of “disparate impact” or cases where there is not clear evidence of discriminatory intent  Production of evidence, fact finding, truth in itself = pursuit of modern legal reasoning = Title VII and its valuableness ▯ ▯ Hicks  McDonnell Douglas only determines when burden of production shifted between the parties of a case, but NOT THE BURDEN OF PERSUASION, WHICH IS ALWAYS THE PLAINTIFFS  Burden of production vs burden of proof  So… even if P wins at every stage of producing evidence to keep her prima facie case going forward, this does not prove D violated Title VII, and P must still persuade the jury that D illegally used race in an employment decision o Only proven if the plaintiff successfully persuades jury/judge o Juries reflect the overriding sensibilities of our society ▯ ▯


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