Blumerosen, Alfred W.

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Employment Discrimination Law. By Barbara Lindemann Schlei and Paul Grossman.

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BOOK REVIEWSEMPLOYMENT DISCRIMINATION LAW. By Barbara Lindemann Schlei andPaul Grossman. Washington, D.C.: The Bureau of National Affairs, Inc.,1976. Pp. liii, 1472. $39.50.Reviewed by Alfred W. Blumrosen*The publication of treatises concerning the law of employment dis-crimination, such as the one reviewed here, marks a new stage in the growthof this branch of the law. A legal explosion has taken place in the field ofemployment discrimination law, an area of practice which was virtuallynon-existent a scant decade ago.' Employment discrimination complaintsare now being filed with the EEOC at the rate of more than 50,000 a year, 2and some 4,000 employment discrimination cases were filed in the federaldistrict courts in fiscal year 1975.1As employment discrimination law expands, more and more lawyerswill be involved. In the early volumes of fair employment practice reports,one who had worked in the field could recognize counsel in most of thecases. Today this is no longer true. Thousands of inexperienced lawyers arecoming into the field with a need for an initial exposure to what has quicklybecome a complex discipline. This influx underlies the popularity of shortcourses on employment discrimination and the need for well-organizedtexts.I.In meeting this need, the Schiei-Grossman book is extraordinarilysuccessful. All of the leading cases are there. The litigation issues arecarefully spelled out, at least to the point of giving the working lawyer abasis on which to approach specific problems. Thus, as a tool for lawyerswho need sufficient knowledge to begin a close analysis and disposition of a* Professor of Law, Rutgers, The State University of New Jersey. A.B. 1950, J.D. 1953,University of Michigan. Chief of Conciliations, EEOC 1965-67; author of Black Employmentand the Law.THE FOLLOWING CITATION WILL BE USED IN THIS BOOK REVIEW:B. SCHLEI & P. GROSSMAN, EMPLOYMENT DISCRIMINATION LAW (1976) [hereinafter cited asEMPLOYMENT DISCRIMINATION LAW].1. The first major effort to organize materials in this field was M. SOVERN, LEGALRESTRAINTS ON RACIAL DISCRIMINATION IN EMPLOYMENT (1966).2. 9 EEOC ANN. REP. 51 (1975) (56,000 complaints filed in FY 1974).3. [1975] DIR. OF ADMIN. OFFICE OF U.S. COURTS, ANN. REP. 223 (Table 33).DUKE LAW JOURNALproblem, the book is unique and admirable. I find only two weaknesses,both of which are matters of emphasis rather than omission.There seems to be an under-emphasis of the problems raised by Curtisv. Loether4 and Justice Rehnquist's concurring opinion in Albemarle PaperCo. v. Moody, 5 with respect to the possibility for a jury trial under 42U.S.C. § 1981, and the implications of that possibility for the conduct ofboth plaintiff and defendant. Curtis held that the seventh amendment'scommand that the right to jury trial be preserved "[i]n suits at commonlaw" applied to actions brought under section 812 of the Civil Rights Act of1968.6 Both the majority in Curtis and Justice Rehnquist in his Albemarleconcurrence suggested that jury trial rights in employment discriminationsuits might depend in part upon the relief demanded by the plaintiff. 7 Thus,plaintiffs may be tempted to eschew the opportunity for general damagesunder 42 U.S.C. § 1981 and other laws8 in order to avoid a jury trial. Theimplications of this problem are mentioned9 but not adequately explored inthe material.A second and perhaps more serious objection is the under-emphasis onprevention of suit and the settlement process. I fear that we may tend to givelip service to the desirability of informal means of compliance while turningTitle VII into a lawyer's technical playground. 10 This is a mistake whichbodes ill for the broader effort to improve employment opportunities forminorities and women. Litigation and settlement are inexorably linked in the4. 415 U.S. 189 (1974).5. 422 U.S. 405, 441 (1975).6. 42 U.S.C. § 3612 (1970).7. While it specifically declined to express an opinion on the subject, the Curtis Courtdeemed it "instructive" to contrast the provisions of the 1968 Civil Rights Act with theanalogous section of Title VII of the Civil Rights Act of 1964,42 U.S.C. § 2000e-5(g) (1970). 415U.S. at 196-97. The stated ground for distinction was the 1968 Act's authorization of suits for"actual and punitive damages," a traditional common-law remedy requiring a jury trial, asopposed to the 1964 Act's restriction of allowable relief to "reinstatement or hiring of employ-ees, with or without back pay . . ., or any other equitable relief as the court deems appropri-ate." 42 U.S.C. § 2000e-5(g) (1970).Justice Rehnquist elaborated on the jury trial issue in his Albemarle concurrence. Address-ing the remedial section of Title VII directly, he stated:To the extent . . . that the District Court retains substantial discretion as towhether or not to award backpay notwithstanding a finding of unlawful discrimina-tion, the nature of the jurisdiction which the court exercises is equitable, and underour cases neither party may demand a jury trial. To the extent that discretion isreplaced by awards which follow as a matter of course from a finding of wrongdoing,the action of the court in making such awards could not be fairly characterized asequitable,. . . and would quite arguably be subject to the provisions of the SeventhAmendment.422 U.S. at 443.8. There is an excellent discussion of state and common law remedies in chapter 23 ofEMPLOYMENT DISCRIMINATION LAW.9. See EMPLOYMENT DISCRIMINATION LAW 1010-11.10. This is an old concern. See Blumrosen, The Crossroads for Equal Employment Oppor-tunities: Incisive Administration orIndecisive Bureaucracy?, 49 NOTRE DAME LAW. 46 (1973).[Vol. 1977:279BOOK REVIEWactions of lawyers for the government, the plaintiff and the defendant. Anylarge-scale effort to inform the bar, such as is undertaken in this book,should pay more attention to the alternatives to litigation.This issue is not completely ignored in the materials. For example, asound process for handling individual claims of discrimination in an infor-mal manner is set out in chapter 18.11 One of the more interesting aspects ofthe book is the emphasis in chapter 35 on Federal Rule 68, the offer-of-judgment rule, which gives a defendant post-filing leverage to induce asettlement. However, there is no thorough discussion of such questions asthe various formulas for measuring back pay, which are important in boththe litigation and the settlement contexts. There is some discussion of thismatter, but all lawyers, whether they represent the government, plaintiffs ordefendants, would benefit from a more extensive analysis of the variousproposals for measuring back pay which the courts have developed. Thenuts and bolts of the settlement process should be discussed as thoroughly asthe time for filing suit or the determination of an appropriate class.H.The dilemma of the legal analyst is that in order to organize a body oflaw, it is necessary to classify materials. The classification system may thenitself influence the growth of the law by its emphasis on certain directions. Ifthere is a way of avoiding this dilemma, it lies in viewing court pronounce-ments as statements of principles subject to further evolution, rather than asrules of law set in concrete. This would lead a writer to be perhaps moretentative and hesitant in the classification process than were the authors. Yetsuch a hesitancy might have made the material less useful for the prac-titioner.Granting that a classification system is necessary, I have some reserva-tions about the one utilized by the authors. Their theory is that discrimina-tion can be divided into four categories-disparate treatment, the presenteffects of past discrimination, adverse impact, and reasonable accommoda-tion. The development of this theoretical structure accounts for the firstquarter of the treatise. However, late in the book they introduce a fifthfactor, motive or intent. In discussing the proof problems arising out ofMcDonnell Douglas Corp. v. Green,12 the authors write thatWhen approaching the proof or disproof of a disparate treatmentcase, the ultimate focus of the inquiry, and thus the proof, is whether ornot the decision or action in question was 'racially premised.' In otherwords, motivation and intent are the ultimate issue. . . in contrast to11. See EMPLOYMENT DISCRIMINATION LAW 524-30.12. 411 U.S. 792 (1973).Vol. 1977:279]DUKE LAW JOURNALthe two other theories of discrimination, which focus on the conse-quences of employment practices, not simply the motivation.'1 3Thus, "disparate treatment" is said to be a method of proving "evilmotive" rather than an independent category of discrimination.I think that the classification and order of presentation chosen areunfortunate. Discrimination would be more clearly understood and casesmore easily analyzed under a classification system which began with evilintent, moved on to unequal or disparate treatment, and concluded withadverse effect.14 Disparate treatment was viewed initially as a way ofproving evil motive, as the authors suggest. The adverse effect concept is anew and important development in the field, which must be carefullymastered by lawyers. I therefore applaud the authors' emphasis on Griggs v.Duke Power Co. ,15 which they have placed first in the book. However, thedeferral of any discussion of evil motive as a basis for discrimination untilthe latter part of the book is not helpful. Furthermore, I disagree with theabove-quoted suggestion that the "disparate treatment" concept of discrimi-nation is no more than a way of proving evil motive. The authors werecorrect in initially treating disparate treatment as discrimination, not asevidence of something else; but in the passage quoted above, they take backa good bit of what they had given.I also have difficulty with the authors' classification of "reasonableaccommodation" as a separate category of discrimination applicable toreligion. 16 Most religious discrimination cases are readily analysable underthe adverse effect rule of Griggs. A policy which requires employees towork on Saturdays has an adverse effect on those who are not able to do soby virtue of religion. Unless the employer can demonstrate that businessnecessity requires their attendance, he is in violation of the statute. If a lessdrastic means of achieving his objective is available, the employer may notutilize the more drastic means.17 The business necessity defense necessarilyencompasses the question of whether the employer could accommodate thereligious needs of his employees. In short, I believe the duty to "accommo-date" is an implicit aspect of the business necessity defense, and not aseparate category of discrimination.Is this simply an academic quibble or is it a more substantial question?If Title VII is read as imposing a duty to accommodate in religious matters,serious constitutional questions arise. 8 If the statute is read as imposing a13. EMPLOYMENT DISCRIMINATION LAW 54 (footnotes omitted) (emphasis in original).14. See generally Blumrosen, Strangers in Paradise: Griggs v. Duke Power Co. and theConcept of Employment Discrimination, 71 MIcH. L. REv. 59 (1972).15. 401 U.S. 424 (1971).16. See EMPLOYMENT DISCRIMINATION LAW, ch. 7.17. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975).18. The Supreme Court has granted certiorari in a case which may deal with such issues.[Vol. 1977:279BOOK REVIEWduty not to discriminate, those constitutional questions are less momentous.To avoid calling into question the validity of Title VII, it is important to usea legal concept of discrimination which remains within the control of thecourts. Judges may adapt and shape that concept as the needs of the timerequire. But if there is an independent duty to "accommodate," thenCongress has asserted an extraordinary and possibly unconstitutional powerto require an individual to modify his actions to fit the religious convictionsof his neighbors. Such a broad power is not required to eliminate religiousdiscrimination. I think that the long-term impact of treating religious accom-modation as a separate category ill serves the cause of expanded employ-ment opportunity.Part V of the book, which separates the treatment of problems relatingto race and color, national origin, native Americans and sex, produces akind of redundancy, particularly in the sex area. I believe the concepts ofdiscrimination are equally applicable regardless of the particular basis in-volved. If one understands this point, however, the material dealing withvarious specific problems is well presented.There are some problems arising from the continuous stream of Su-preme Court decisions in the field. For example, Franks v. Bowman Trans-portation Co. ,19 which appears in full in the third discussion of seniority, 20should (along with part of Albemarle Paper Co. v. Moody2 1) be the primarycase in the initial analysis of the seniority discrimination problem. I suspectthat the scheme of the book was set in concrete (if not in type) by the timeFranks was decided, and it was necessary to slot it somewhere. Because ofits importance, it should have been placed in the initial discussion ofseniority.Efforts by unions and employers in a collective bargaining relationshipto eliminate discrimination have been taken into account by a number ofcourts in apportioning liability between them. These decisions are intendedto encourage the parties in collective bargaining relationships to clean theirown house and are therefore important in any consideration of settlement.The possibility of shifting liability to the other party by seeking the elimina-tion of discrimination should have received greater emphasis than theauthors' indirect references to it in Chapter 19.22These shortcomings do not detract from the value of the book as alawyer's guide through what has in a short time become a maze of law. TheHardison v. Trans World Airlines, 527 F.2d 33 (8th Cir. 1975), cert. granted, 97 S. Ct. 381(1976).19. 424 U.S. 747 (1976).20. See EMPLOYMENT DISCRIMINATION LAW 477.21. 422 U.S. 405 (1975).22. EMPLOYMENT DISCRIMINATION LAW 565.Vol. 1977:279]DUKE LAW JOURNALbook has a comprehensive index in which I was able to find relevantresearch references to all the matters on which I would have wanted furtherdiscussion. As a practitioner's guide through Title VII, in the best sense ofthe phrase, it is an admirable product.In..In the preface to Employment Discrimination Law, the authors statethat they intended their book to be of "equal value to practitioner andstudent." 2 3 The second goal was less successfully accomplished. I fear thatthe student will fall to achieve a sense of direction and growth in the lawfrom the materials themselves. The absence of sociological, historical andpolitical science materials from the book detracts from its utility for thestudy of the legal process in this infinitely fascinating and changing area ofhuman behavior. The book is more in line with traditional casebooks whichemphasize doctrinal developments, but I doubt that advanced law studentsrequire another doctrinal course. Rather, they need to gain a broader under-standing of the interrelationship between the legal system and other facets ofsociety. I know of no better field of law for teaching about that interrelation-ship than this. The case materials, the historical materials, and economicdata lend themselves well to this study. That dimension is not present in thisbook.There may be a contradiction inherent in the very purpose of theauthors. I am not sure it is possible to prepare materials which are assuperbly designed as these for thoughtful practicing attorneys and which, atthe same time, will illuminate the underlying subject matter in ways that willbe of most value to law' students. The treatment of individual claimsrevolving around McDonnell Douglas Corp. v. Green24 illustrates thispoint. As a doctrinal treatment of discharge and refusal to hire cases, thematerial is cogent and accurate. But in its evaluation of the historical sweepof the period 1972 to 1976 in connection with the concept of "pretextuali-ty," it falls to note that the Supreme Court has moved away from theapparent rigidity of the prima facie case concept of McDonnell Douglas.This is of little moment to busy practitioners who need to know what the ruleis. It is of great importance, however, to students who are seeking a sense ofthe direction and growth of the law.One other example may be in order. In connection with Washington v.Davis,2 the authors suggest that the significance of the case lies in thewillingness of the Court "to accept professionally approved methods ofestablishing job-relatedness despite noncompliance with the 1970 EEOC23. Id. at xv.24. 411 U.S. 792 (1973); see EMPLOYMENT DISCRIMINATION LAW 1147 et seq.25. 426 U.S. 229 (1976).[Vol. 1977:279BOOK REVIEWGuidelines," 2 6 thereby pitting Washington v. Davis against AlbemarlePaper Co. v. Moody27 somewhat more directly than the Court believed thatit was doing.2" But Washington v. Davis can be analyzed as a case in whichthe entry-level job (a seventeen-week assignment as a police trainee) wassubject to a written test which had been validated. The employer had notvalidated the test with respect to the higher level job of policeman, but theemployer is not required under the EEOC Guidelines to validate tests forhigher level jobs. The normal posture for advocates of equal employmentopportunity would be to oppose an employer's effort to use entry level testswhich evaluated potential for performance at higher level jobs-a reversalof the posture of the parties in Washington v. Davis. Questions such asthese are or should be grist of the law student's concern, and their absencefrom this material makes the book less useful for teaching purposes.Perhaps there is a legal equivalent of the Heisenberg principle. Perhapsone must choose whether to isolate the legal system at a point in time andsee it in its manifold dimensions, which the authors have done admirably, orto view it as an evolving institution which responds to the underlyingpressures, desires and needs of the society of which it is a part, therebysacrificing some clarity and precision.I strongly recommend this book for practitioners, and intend to keepmy copy handy for those occasions when I function as a consultant. I alsostrongly recommend the book as a ready reference work for law teacherswho may lack familiarity with some areas of employment discriminationlaw; in particular I suggest reading the section dealing with litigation, whichis extraordinarily good. I would not recommend, however, that it be used bylaw students where the objective is, or should be, an understanding of theevolution of the legal system.26. EMPLOYMENT DISCRIMINATION LAW 102.27. 422 U.S. 405 (1975).28. See Washington v. Davis, 426 U.S. at 250-51.Vol. 1977:279]

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Employment Discrimination Law. By Barbara Lindemann Schlei and Paul Grossman.

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