The Matrix: A Pedagogical Tool for Teaching Employment Discrimination Law

• Author: Roger J. Johns
• Published date: 01 February 2008
• Date: 01 February 2008
• DOI: http://doi.org/10.1111/j.1744-1722.2008.00047.x

The Matrix: A Pedagogical Tool

for Teaching Employment

Discrimination Law

Roger J. Johns

n

INTRODUCTION

The teaching of law in collegiate schools of business has a long history

1

and

a set of purposes that includes training students to know and understand

their basic legal rights and obligations in the business arena, to recognize

and avoid the liability-laden situations that would necessitate legal repre-

sentation, to know when to engage legal counsel, and to be a savvy client.

2

Consequently, the value of the content of legal studies courses offered in

schools of business is directly related to how well it can be operationalized

to serve these purposes. More succinctly, the value of the content of legal

r2008, Copyright the Author

Journal compilation rAcademy of Legal Studies in Business 2008

75

Journal of Legal Studies Education

Volume 25, Issue 1, 75–106, Winter/Spring 2008

n

Lecturer in Business Law, Richards College of Business, University of West Georgia.

1

See ‘‘About Us,’’ http://www.alsb.org/ (citing the founding of the American Business Law As-

sociation in 1924).

2

See generally John D. Donnell, The Businessman and the Business Law Curriculum,6AM.BUS. L.J.

451 (1968); Tom Dunfee et al., The Business Law Curriculum: Recent Change and Current Status,

18 AM.BUS. L.J. 59 (1980); William G. Elliot & Arthur Wolfe, The Need for Legal Education by

Persons in Business,19AM.BUS. L.J. 153 (1981); George J. Siedel III et al., An

Executive Appraisal of the Importance of Business Law,22AM.BUS. L.J. 249 (1984); John D. Don-

nell, Redesigningthe Required UndergraduateBusiness Law Course, 2 J. LEGAL STUD.EDUC. 1 (1984);

ElliottKlayman & Kathleen Nesser,Eliminating the DisparityBetween the Business Person’s Needsand

What Is Taught in the Basic Business Law Course,22A

M.BUS. L.J. 41 (1984); Gary A. Moore &

Stephen E. Gillen, Managerial Competence in Law and the Business Law Curriculum: The Corporate

Counsel Perspective,23AM.BUS. L.J. 351 (1985); John W. Yeargain & John Tanner, Alumni Per-

spectives on the Business Law Curriculum, 9 J. LEGAL STUD.EDUC. 37 (1990); John R. Allison, The

Role of Law in the BusinessSchool Curriculum, 9 J. LEGALSTUD.EDUC. 239 (1991);Michael W. Little

& William H. DaughtreyJr., Survey of Virginia Corporate Executives on the Role of Law in Business

Curricula,13J.L

EGAL STUD.EDUC. 147 (1995); John Collins, Learningto Make Business Decisions in

the Shadow of the Law,17J.LEGAL STUD.EDUC. 117 (1999); Dan Bertozzi, A Survey of the Role of

Legal Studies in Business, Business-Governmental Relations/Public Policy, and BusinessEthics Courses in

the Top 50 MBA Programs in the UnitedStates,17J.LEGAL STUD.EDUC. 229 (1999).

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.

3

To this end, a pedagogical tool

for bringing managerial focus to bear on the recognition and avoidance of

employment discrimination problems is offered here.

THE MAGNITUDE OF THE PROBLEM

In the eighteen years from 1989 to 2006, the Equal Employment Oppor-

tunity Commission (EEOC) received an average of 73,190 charges of em-

ployment discrimination per year.

4

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

5

per year for all claimants. Because the great ma-

jority of employment discrimination cases that go to litigation in any given

year are litigated by private attorneys, and not by the EEOC, the cost im-

pact 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 peda-

gogical tool designed to equip managers with the tools to recognize 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.

3

See Klayman & Nesser, supra note 2, at 47–50; Little & Daughtrey, supra note 2, at 155–56.

4

See UNITED STATESEQUAL EMPLOYMENT OPPORTUNITY COMMISSION ANNUAL REPORTS (for 1989–91

charge statistics), http://www.eeoc.gov/stats/charges-a.html (for 1992–96 charge statistics) (last

visited Mar.28, 2007); http://www.eeoc.gov/stats/charges.html (for 1997–2006 chargestatistics)

(last visited Mar. 28, 2006) (copies of the pages found at these URLs are on file with the

author).

5

Id. Monetary Benefits Secured Through Litigation (for 1989–91), http://www.eeoc.gov/stats/

litigation-a.html (for 1992–96) (last visited Mar. 28, 2007); http://www.eeoc.gov/stats/

litigation.html (for 1997–2006 (last visited Mar. 28, 2006) (copies of the pages found at these

URLs are on file with the author).

76 Vol. 25 / The Journal of Legal Studies Education

BURDENS OF PROOF IN INDIRECT-PROOF

EMPLOYMENT DISCRIMINATION LITIGATION

In general, the sequence of major steps in indirect-proof employment dis-

crimination litigation under federal statutes is: (1) the plaintiff must prove

the elements of a prima facie case of discrimination,

6

by a preponderance

of the evidence; (2) the defendant must then articulate a legitimate, non-

discriminatory reason for its alleged acts of discrimination;

7

and (3) the

plaintiff must then demonstrate, again by a preponderance of the evi-

dence, that the defendant’s articulated nondiscriminatory reason is a pre-

text

8

(i.e., 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 dis-

miss.

9

Every element of the prima facie case must be proved, by a pre-

ponderance of the evidence.

10

Failure to prove even one element means

that the plaintiff fails at the first step and cannot continue to prosecute the

cause of action.

11

Consequently, the defendant can escape liability by pre-

venting 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 behaviors described by the el-

ements of the prima facie case should be given continuous managerial at-

tention. Rather than relying solely on one’s litigation attorney to try to

prevent a plaintiff from proving the elements of a case during trial, man-

agers can learn to recognize and arrest the development of the sequence of

specific workplace behaviors that give rise to the elements of the prima

facie case and thereby lessen the likelihood of litigation. Shifting the man-

ager’s focus from the prevention of proof to the prevention of behaviors

6

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973).

7

Id.

8

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507–08 (1993).

9

See BLACK’SLAW DICTIONARY 1071 (5th ed. 1979).

10

See FRANK B. CROSS &ROGER LEROY MILLER,WEST’SLEGALENVIRONMENT OF BUSINESS 53 (5th

ed. 2004).

11

See, e.g., Petrosino v. Bell Atlantic, No. 99 CV 4072 (JG), 2003 U.S. Dist. LEXIS 4616

(E.D.N.Y. Mar. 20, 2003) (granting summaryjudgment to the defendant because the plaintiff

failed to prove one element of the prima facie case of failure to promote on the basis of sex).

2008 / A Pedagogical Tool for Teaching Employment Discrimination Law 77