Billy Joel The Stranger 1977

1
Billy JoelThe Stranger (1977)
2
Ps Evidence in Sorenson

• Responding Yes to Ps Question
• Timing (eviction right after saw Afr-Am girls in
  apt.)
• Said to anxious neighbor he did not intend to
  rent to 2 Afr-Am girls
• Admitted preference for no Afr-Am tenants
• No Afr-Am residents in complex

3
Ds Evidence in Sorenson

• Testimony re fury re former tenant party
• Parties, noise, complaints, harm to apt.
• Explanation of yes to annoy Sorenson
• Explanation of no intent to rent they hadnt
  asked to rent
• Explanation of no Afr-Am residents none had
  ever applied
• Ds involvement in civic race relation projects

4
Ps Additional Evidence in Marable

• History No Afr-Am tenants ever
• HUD conclusion Race was reason
• Changing stories
• Ds admissions of racial exclusion to prior
  employee (Trial Court found not credible)

5
Ps Difficulties in Marable

• Changed testimony re deposit
• Contradicted by manager re statement re marital
  status
• Contradicted by Mrs. Sims at credit service

6
STANDARDS OF REVIEW OF FINDINGS OF FACT

• Jury No Reasonable Juror could find

• Judge Clear Error
• definite firm impression mistake was committed
• can reverse even if some evidence supporting

7
Application of Clear Error Test

• Ds intent finding of ultimate fact
• Not clear error test
• Only give deference on intermediate findings
• Must concede all credibility issues to D
• CtApp Undisputed documentary evidence shows Ds
  treated White applicants differently.

8
DQ22 Why might the same court that affirmed in
Sorenson feel comfortable reversing in Marable?
9
DQ22 Why might the same court that affirmed in
Sorenson feel comfortable reversing in Marable?

• Judge v. Jury
• Trial Judge not very credible (mis/overstates
  record)
• Note that Marable may have foregone jury trial
  b/c of concerns w all White jury as in Sorenson

10
Both cases Statutes violated if race is one
significant factor.

• Not the standard anymore for non-govt
  defendants!!
• More complex mixed motive analysis well do next
  week in Cato

11
DISCRIMINATION HARD TO PROVE

• Hard to get evidence of motives
• Clients not perfect
• Ds who are regular players likely to be more
  sophisticated than in Marable
• Decision-makers may be disinclined to recognize
  discrimination

12
ANNOUNCEMENTS

• Paper/Project Proposal Due Tomorrow Noon

13
ANNOUNCEMENTS

• Paper/Project Proposal Due Tomorrow Noon
• Assignment I Due Next Tuesday
• Video on Reserve at Circulation Desk
• Date of Ordinary Moments is 1985
• Qs?

14
ANNOUNCEMENTS

• Paper/Project Proposal Due Tomorrow Noon
• Assignment I Due Next Tuesday
• Information Memo 1 Posted Online
• Write-Up of 1st Set of Discussion Groups
• Short Problems Applying Marina Point
• Excerpt from Fall River (Govt Intent Case)
• List of Discussion Groups Tasks for Next Tuesday

15
ANNOUNCEMENTS

• Paper/Project Proposal Due Tomorrow Noon
• Assignment I Due Next Tuesday
• Information Memo 1 Posted Online
• Quick Return to Student Insights
• Robert Blatt Lack of Attention to Powerless
• Oren Significance of State Landlord-Tenant Rules

16
RIZZO

• HIMALAYAS

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SPECIAL PROBLEMS OF GOVERNMENT INTENT

• DQ23 What does it mean to say that a
  legally-created corporate entity like the City of
  Philadelphia had a discriminatory purpose?
• Whose state of mind is relevant to determining
  the Citys purpose?

18
SPECIAL PROBLEMS OF GOVERNMENT INTENT

• DQ24 The Supreme Court does not require the
  plaintiff to prove that racial animus is the
  citys sole motive, but only a motivating
  factor Try to elaborate in your own words what
  this standard means in the context of a decision
  by a city.?

19
SPECIAL PROBLEMS OF GOVERNMENT INTENT

• We could use a higher standard (primary,
  dominant, significant, etc.). Sensible to just
  say motivating?

20
SPECIAL PROBLEMS OF GOVERNMENT INTENT

• We could use a higher standard (primary,
  dominant, significant, etc.). Sensible to just
  say motivating?

21
SPECIAL PROBLEMS OF GOVERNMENT INTENT

• DQ26 Suppose a city council votes 8-5 to pass a
  measure. To prevail under the motivating
  factor test, how many councilmembers must a
  plaintiff show had a discriminatory purpose?

22
SPECIAL PROBLEMS OF GOVERNMENT INTENT

23
SPECIAL PROBLEMS OF GOVERNMENT INTENT

24
Arlington Heights I (U.S. 1977) Evidence Needed
to Prove Intent in a Disparate Treatment Case
Against the Govt

• Arlington Heights II (7th Cir. 1977) (on remand)
  Test for Disparate Impact in a Case Against the
  Govt

25
Arlington Heights I Factors

• Discriminatory Impact
• Historical Background
• Sequence of Events Leading to Decision
• Departures from Normal Procedures
• Departures from Normal Substantive Criteria
• Legislative or Administrative History

26
THE MANHATTAN TRANSFER
the offbeat
of avenues

(1991)
27
Pinchback (ALPS)

• DQ32 Plaintiffs Evidence of Discrimination?

28
Pinchback (ALPS)

• Good Case to Attribute to Board
• Board Acting Collectively Explicitly
• President has Authority to Act
• Note Court Doesnt Treat as Vicarious Liability
  (Agent Not Treated As Employee)

29
DQ33 FUTILE GESTURE DOCTRINE

• Failure to apply for job doesnt preclude
  recovery if deterred from applying by accurate
  knowledge of employers discriminatory policies.

30
DQ33 FUTILE GESTURE DOCTRINE

• Failure to apply for housing doesnt preclude
  recovery if deterred from applying by accurate
  knowledge of housing providers discriminatory
  policies.

31
DQ33 FUTILE GESTURE DOCTRINE

• Failure to apply for housing doesnt preclude
  recovery if deterred from applying by accurate
  knowledge of housing providers discriminatory
  policies.
• Purpose?

32
Supreme Court If desire for a job or
housing is not translated into a formal
application solely because of his unwillingness
to engage in a futile gesture, he is as much a
victim of discrimination as those who apply and
are rejected.
33
DQ33 FUTILE GESTURE DOCTRINE

• Failure to apply for housing doesnt preclude
  recovery if deterred from applying by accurate
  knowledge of housing providers discriminatory
  policies.
• Why not require the plaintiff to apply and be
  rejected in order to get standing to sue?

34
Supreme Court People shouldnt have to subject
themselves to the humiliation of explicit
certain rejection.

• JUSTIFY DOCTRINE?

35
Mcd-Dgs Prima Facie Case

• Ordinary Version
• Protected Class
• Applied
• Qualified
• Denied
• Stayed Open/Went to Non-Class Member

36
Mcd-Dgs Prima Facie Case

• Ordinary Version
• Protected Class
• Applied
• Qualified
• Denied
• Stayed Open/Went to Non-Class Member

• Futile Gesture
• Protected Class
• Reliably Informed of Discrim Policy/Would Have
  Applied
• Qualified
• Would Have Been Rejected

37
Mcd-Dgs Prima Facie Case

• Ordinary Version
• Protected Class
• Applied
• Qualified
• Denied
• Stayed Open/Went to Non-Class Member

• Futile Gesture
• Protected Class
• Reliably Informed of Discrim Policy/Would Have
  Applied
• Qualified
• Would Have Been Rejected
• PROS CONS?

38
DQ35 Ds Claim Futile Gesture Doctrine
Inapplicable Employment Different from Housing

• Defendants Arguments Why?

39
DQ35 Ds Claim Futile Gesture Doctrine
Inapplicable Employment Different from Housing

• Defendants Arguments Why?
• Employees have better info re employer policies
  than housing seekers do re housing policies
• Too attenuated leads to many frivolous suits
• Courts Response?

40
DQ35 Ds Claim Futile Gesture Doctrine
Inapplicable Employment Different from Housing

• Defendants Arguments Why?
• Better info re employer policies
• Too attenuated ? frivolous suits
• Courts Response?
• Elements sufficient protection ag. frivolous
  suits
• Policy Shouldnt Have to Apply
• Satisfactory?

41
CATO v. JILEK
ANDES
42
Mcd-Dgs Prima Facie Case

• Ordinary Version
• Protected Class
• Applied
• Qualified
• Denied
• Stayed Open/Went to Non-Class Member

43
Mcd-Dgs Prima Facie Case

• Ordinary Version
• Protected Class
• Applied
• Qualified
• Denied
• Stayed Open/Went to Non-Class Member

• Variations So Far
• -
• Futile Gesture or Tried to
• D Unaware of Qualifications
• Futile Gesture or Effective Denial
• -

44
Mcd-Dgs Prima Facie Case

• Ordinary Version
• Protected Class
• Applied
• Qualified
• Denied
• Stayed Open/Went to Non-Class Member

• Variations in Cato
• D aware of (Probably Always Implicit)
• -
• -
• -
• Skips (Probably Implicit)

45
Mcd-Dgs Prima Facie Case

• Ordinary Version
• Protected Class
• Applied
• Qualified
• Denied
• Stayed Open/Went to Non-Class Member

• Variations All 4 Cases
• D aware of
• Futile Gesture or Tried to
• D Unaware of Qualifications
• Futile Gesture or Effective Denial
• -

46
DQ36 Why does the court say the Mcd-Dgs prima
facie test is unnecessary in this particular
case?
47
DQ37 Plaintiffs Evidence?

48
DQ37 Plaintiffs Evidence?

• D lied re reason for denial
• Testers Evidence
• D asks testers re race
• D says Well, thats fine
• D expresses concern re Afr-Ams to testers
• D admits said no because of fear of other
  tenants response to Ps because of race
• Court says fear of trouble in complex or
  neighborhood is not a defense. Why?

49
DQ37 Ds Atty Ds Choice Married Couple v.
Couple Who Might Not Marry

• He said not sure if Ps were really getting
  married
• He asked Ps testers re marital status
• She preferred not to rent to Ps said one reason
  was marital stat
• Why isnt this sufficient evidence to take the
  case to trial?

50
Problems w Ds Attys Story

• Impossible for him to have known of that choice
  when he lied to Ps re availability
• He had offered them an application day before
  suggests concern w race, not marital status
• Her thoughts irrelevant
• She deferred to him
• They had allowed unmarried couples
• Story inconsistent with interrogatory answers
• Why is the court unhappy with the Ds atty?

51
COURSE LOGISTICS

• Assignment II
• Unit Three
• Old Exams Online
• Responses to Paper Proposals

52
MIXED MOTIVE ANALYSIS

• Plaintiff proves discrimination is a motivating
  factor
• Burden on Defendant to prove it would have made
  same decision anyway based on legitimate motive.
  If D succeeds?

53
MIXED MOTIVE ANALYSIS

• Plaintiff proves discrimination is a motivating
  factor
• Burden on Defendant to prove it would have made
  same decision anyway based on legitimate motive.
  If D succeeds?
• PW D wins completely

54
MIXED MOTIVE ANALYSIS

• Plaintiff proves discrim. is a motivating
  factor
• Burden on Defendant to prove it would have made
  same decision anyway based on legitimate motive.
  If D succeeds?
• PW D wins completely
• 1991 Amdts
• No back pay or reinstatement
• Can get Declaratory or Injunctive Relief Attys
  Fees
• WHY DOES THIS MATTER?

55
DQ39 SEQUENCE OF EVENTS

• Caselaw Title VIII (FHA) like Title VII
• Price Waterhouse interprets Title VII
• CtApp cases apply PW to Title VIII
• Congress amends Title VII (but not Title VIII) to
  alter result PW

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PARIS LEFT FRONT 40-41-39Drude, Rachel Kim,
Michael Lomax, ChrisSteinman, Rebecca Tankha,
NeenaTownsend, HenryWolgin, Michael

• LONDON 39-40-41 LEFT REAR
• Frazer, Amanda
• Hager, Lauren
• McGinn, Shannon
• Meisels, Esther
• Moskowitz, Oren
• Muller, Erika
• Oppenheimer, Daniel

• ROME RIGHT REAR 41-39-40
• Canepa, Bernard
• Harrison, Stacy
• James, Robert
• Mroczek, Ashley
• Nuzum, Robert
• Ohayon, Corey
• Potu, Swetha
• Zarin, Gregory