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Johns, R J --- "The matrix: a pedagogical tool for teaching employment discrimination law" [2009] LegEdDig 27; (2009) 17(2) Legal Education Digest 41


The Matrix: a pedagogical tool for teaching employment discrimination law

R J Johns

25 (1) J Legal Stud Educ, 2008, pp75-106

The teaching of law in collegiate schools of business has a long history and a set of purposes that includes training students to know and understand their basic legal rights and obligations in the business arena, to recognise and avoid the liability-laden situations that would necessitate legal representation, to know when to engage legal counsel, and to be a savvy client. Consequently, the value of the content of legal studies courses offered in schools of business is directly related to how well it can be operationalised to serve these purposes. More succinctly, the value of the content of legal studies courses is directly related to how sharply it focuses a manager’s skill and attention on problem recognition, avoidance, and solution and on opportunity recognition and exploitation. To this end, a pedagogical tool for bringing managerial focus to bear on the recognition and avoidance of employment discrimination problems is offered here.

In the eighteen years from 1989 to 2006, the Equal Employment Opportunity Commission (EEOC) received an average of 73,190 charges of employment discrimination per year. This number represents only those charges arising under federal antidiscrimination statutes and filed with the EEOC. These data understate the magnitude of the problem, because they do not account for purely state law-based claims. The monetary benefits obtained during this period through litigation conducted by the EEOC averaged $72,033,333 per year for all claimants. Because the great majority of employment discrimination cases that go to litigation in any given year are litigated by private attorneys, and not by the EEOC, the cost impact of employment discrimination to business, as reflected by these data, is also understated. Even given their understatement of the problem, these numbers underscore the need for and justify the investment in a pedagogical tool designed to equip managers with the tools to recognise and avoid expensive employment discrimination liability. The pedagogical tool presented here is based on the use of the prima facie case, which is the initial burden of proof faced by plaintiffs in cases depending on indirect proof.

In general, the sequence of major steps in indirect-proof employment discrimination litigation under federal statutes is: (1) the plaintiff must prove the elements of a prima facie case of discrimination, by a preponderance of the evidence; (2) the defendant must then articulate a legitimate, non-discriminatory reason for its alleged acts of discrimination; and (3) the plaintiff must then demonstrate, again by a preponderance of the evidence, that the defendant’s articulated non-discriminatory reason is a pretext (ie, that the asserted reason is false and that it covers up an unlawfully discriminatory reason). A prima facie case is the basic set of facts the plaintiff must establish to be entitled to survive a motion to dismiss. Every element of the prima facie case must be proved, by a preponderance of the evidence. Consequently, the defendant can escape liability by preventing the plaintiff from proving just one element of the prima facie case.

The logic behind basing this pedagogical tool on the prima facie case is that, if proof of the prima facie case is the gatekeeper event for the plaintiff’s case, then the specific workplace behaviours described by the elements of the prima facie case should be given continuous managerial attention. Rather than relying solely on one’s litigation attorney to try to prevent a plaintiff from proving the elements of a case during trial, managers can learn to recognise and arrest the development of the sequence of specific workplace behaviours that give rise to the elements of the prima facie case and thereby lessen the likelihood of litigation. Shifting the manager’s focus from the prevention of proof to the prevention of behaviours enhances the manager’s executive skills, inserts an extra layer of insulation against liability, and, it is hoped, conserves time, energy, money, morale, and reputation.

The prima facie case is a useful point upon which to build pedagogy, not only because of its threshold position in the litigation sequence, but also because the elements of the prima facie case are observable behaviours or patterns of behaviour upon which astute managers can train their focus. For example, in Sanders v Anadarko Petroleum Corp, Barbara Turner, one of the plaintiffs, alleged discrimination in hiring, on the basis of sex. She was required to prove, as the elements of her prima facie case, that ‘(1) she was a member of a protected class, (2) she was qualified to do the job, (3) she suffered an adverse employment action, and (4) others outside the protected group were treated more favourably than she was’. Conversely, these are the very elements the defendant would want to prevent being proved. And, all of the case-specific behavioural or environmental elements described by the generic elements of the prima facie case would have been or should have been easily discernable by the defendant decision makers, as they were happening. That Turner suffered an adverse decision would or should be obvious to the decision maker who decided not to hire her for the position she sought. And the decision maker would know, in advance of the decision, whether the applications of other individuals who were indistinguishable from the plaintiff in terms of qualifications and job sought, but differed from her with respect to gender, were more favourably received. The point of this explication is that: (1) the information the defendant needed to make a lawful decision tracked the elements of the prima facie case that was eventually asserted against it and (2) the information was knowable in advance. In a sense, the elements of the prima facie case are two sides of the same coin – what plaintiffs need to prove and what potential defendants need to avoid.

Similarly, in Stokes v Westinghouse Savannah River Co, in which the plaintiff alleged a discriminatory reduction in force on the basis of age, the plaintiff was confronted with having to prove that ‘(1) [t]he employee was [aged forty years or older], (2) he was selected for discharge from a larger group of candidates; (3) he was performing at a level substantially equivalent to the lowest level of those of the group retained; and (4) the process of selection produced a residual work force including some persons in the group who were substantially younger than him and who were performing at a level lower than that at which he was performing’. As in Sanders, the generic elements of the prima facie case were knowable ahead of time and, therefore, available as a behavioural template to guide the defendant in recognising the specific workplace behaviours described by the elements.

Proceeding from the premise that knowledge of the elements of a prima facie case constitutes a useful template for pre-emptively assessing workplace behaviour, the objective becomes one of how to equip the manager with an efficient means for naming, visualising, and discovering the elements of all prima facie cases. To this end, the pedagogical method documented here is offered.

This pedagogical tool consists of three principal components: (1) the Matrix, (2) a standard format Descriptor, and (3) the Lists of Elements of the Prima Facie Cases that serve as the content of the Matrix.

The Matrix is, in a sense, the map of the universe of prima facie cases. It is in the form of a table in which the columns are denominated as the personal traits upon which the making of employment decisions is generally unlawful. The rows are thirty-three discrete points in the employer-employee relationship that are particularly vulnerable to the effects of employment-related decision making. These vulnerable points in the employer-employee relationship, each of which is referred to in EEOC materials as an ‘issue’, are taken from the EEOC annual reports and, for the sake of clarity, will be referred to, hereinafter, as employer activities. A unique, nameable prima facie case exists at the intersection of each row and each column of the Matrix.

The Descriptor is a standardised verbal formulation that combines an employer activity with a protected trait to produce a precise name of a form of actionable discrimination. The Descriptor takes the form: Discrimination in (1), on the basis of (2).

Any employer activity from the vertical axis can be inserted into Blank (1), and any protected trait, from the horizontal axis, can be inserted into Blank (2). Completing the descriptor produces the name of a unique species of actionable discrimination. Examples of properly constructed Descriptors might look like: ‘Discrimination in training, on the basis of race’ or ‘Discrimination in recall on the basis of sex’.

The third component of the pedagogical tool consists of the Lists of Elements of the Prima Facie Cases, which serve as the content of the cells in the table. For example, the cell at the intersection of the employer activity harassment and the protected trait disability would be named by the Descriptor: ‘Harassment on the basis of disability’ and would contain the elements: (1) The plaintiff [is a qualified individual with a disability]; (2) The plaintiff was subjected to unwelcome harassment; (3) The complained-of harassment was based on her disability or disabilities; (4) The complained-of harassment affected a term, condition, or privilege of employment; and (5) The employer knew or should have known of the harassment and failed to take prompt, remedial action.

Likewise, the cell at the intersection of the employer activity discipline and the protected trait religion would be named by the Descriptor: ‘Discriminatory discipline on the basis of religion’ and would contain the elements: (1) [The plaintiff] has a bona fide religious belief that conflicts with an employment requirement; (2) [The plaintiff] informed the employer of this belief; and (3) [The plaintiff] was disciplined for failure to comply with the conflicting employment requirement.

Even devoid of content, the Matrix is a simple, compact, and easy-to-visualise schematic representation of a significant fraction of the field of actionable employment discrimination. The primary value of the Matrix, without the Lists of Elements of the Prima Facie Cases, is to demonstrate to students and managers that the areas of the workplace fraught with employment discrimination liability potential are not vague and abstract, but comprise a clearly delineated and methodically describable set of events. Likewise, the primary value of the Descriptors is to demonstrate to students and managers that events of discrimination are not simply some random confluence of workplace circumstance and employee complaining behaviour, but that they are specifically defined legal constructs. Together, the Matrix and the Descriptors bring a sense of order and definition to the field of employment discrimination. The third component, the Lists of Elements of the Prima Facie Cases, is intended to add a sense of manageability to the field, by illustrating that: (1) the forms of actionable discrimination comprise specific, observable patterns of workplace events and behaviours and (2) the patterns are generically described in advance, in the case law, and can, therefore, be known by the manager, detected in the workplace, and arrested before they become actionable.

Classroom use of the Matrix is primarily demonstrative and should cover at least four points: (1) provision of the protected traits, along with a short description of the statutes that offer the protection; (2) exhibition of the list of vulnerable employer activities along with an explanation of their source; (3) demonstration of how these two lists are combined into a single table; and (4) a statement of the purpose of the Matrix. Because the Matrix is a map of the territory, it may be desirable to demonstrate it early in order to provide students with the necessary framework for acquiring the remainder of the technique.

Construction of Descriptors can be both demonstrative and participatory. Students can be encouraged to construct Descriptors of special interest to them. The technique of combining a protected trait with an employer activity to construct a Descriptor is simple enough that it can be accomplished quickly and should be used to segue into the more participatory component of the pedagogy: the Lists of the Elements of the Prima Facie Cases.

At a minimum, students should know: (1) the definitions of the parties to a lawsuit; (2) the definitions of cause of action and prima facie case; (3) that proof of the prima facie case is an all-or-nothing proposition, as well as a gatekeeper event for the plaintiff; (4) the standard of proof for civil actions; and (5) use of elements of prima facie cases is to equip students and managers with operational checklists of liability-laden behaviour patterns to which attention should be paid. With respect to the definition of prima facie case, the instructor should emphasise that it constitutes a set of facts that, if proved by a preponderance of the evidence, will allow a disinterested observer to unmistakably infer that actionable discrimination has occurred; the prima facie case is a web of circumstance that implicates the existence of unlawful discrimination even in the absence of an admission of such by the defendant.

The instructor first shows the students a List of Elements taken from one case of interest and demonstrates how the elements, taken together, provide the web of circumstance that produces an inference of discrimination. The instructor then challenges the class to attempt to develop the List of Elements of one of the other prima facie cases the instructor has on hand, after the fashion of the demonstration.

Some instructors like to have students learn basic legal research skills. In these exercises, the instructor can assign a Descriptor to a student and task the student with finding a reported case in which discrimination of the type named by the Descriptor was addressed. For example, the instructor might assign a student to find and read a case involving ‘Harassment on the basis of Religion’ and to report back to the class on the facts and reasoning behind the outcome of the case.

This is the most work-intensive implementation of the pedagogical tool, but it is here that the student will be able to practice observing the workplace through the eyes of the manager or supervisor, have the opportunity to use the Lists of Elements to evaluate workplace fact patterns, and, thereby, develop the skill this pedagogical tool is designed to cultivate. The scenario should be sufficiently extensive to approximate realistic workplace situations and sufficiently complex that finding the behaviours (or lack thereof) corresponding to the subject prima facie cases will be a challenge.

Students should be provided with the list of the Descriptors for the prima facie cases embedded in the scenario and challenged to develop the Lists of Elements of these prima facie cases. Once the instructor is satisfied that the students have developed correct, complete lists, the students should be asked to read the scenario and to render an opinion as to which, if any, kinds of unlawful employment discrimination are described within the scenario. Students should also be asked to support their opinions by citing to the behaviours in the text of the scenario that support the presence (or not) of the elements of the prima facie cases named in the Descriptors.

A more realistic, and much more challenging variation of this implementation, would be to present the students with the scenario, but not the Descriptors, and require them to evaluate the scenario for the presence of behaviours that correspond to the elements of any prima facie cases they can find.

Both variations can be conducted as competitions, where individual students or teams of students are asked to evaluate the scenarios and are judged on the basis of how accurately, completely, and quickly they perform the evaluations.

This implementation of the pedagogical tool appears to work best when students are provided with a copy of the scenario at least one class period before the class in which the scenario will be discussed. In order to maximise the impact of the exercise, in instances where the scenarios are adapted from the facts of reported decisions, the identity and outcome of the cases relied on should be withheld until after the students have fully discussed their own evaluations. Instances where student evaluations produce outcomes different from the courts’ can be explored and used to sharpen students’ skills at recognising alternative interpretations of facts and law.

This pedagogical tool is intended to develop certain target capabilities and to provoke further study. First, it is hoped that students will be able to develop the ability to keep the Matrix and its component lists constantly running in their mental backgrounds, as a sort of behaviour-evaluation radar configured to detect the emergence of liability-laden patterns of workplace behaviour. Second, and in service to the first target capability, it is hoped that a routine order of thought will engage to evaluate workplace behaviour, that students will direct their thought process from a visualisation of the Matrix, to a given Descriptor, to the generic List of Elements of the corresponding prima facie case, and then to the specific workplace behaviours described by the elements.


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