Applying Restitution to Remedy a Discriminatory Denial of Partnership
This article suggests that a plaintiff can bring a state cause of action in restitution, liability in unjust enrichment, as an alternative to a federal cause of action in Title VII if the plaintiff was discriminatorily denied partnership by a firm that paid her a salary, but billed her time by the hour to clients. If the firm earned more than it paid in salary and overhead to the plaintiff, that amount would be defendant’s gain, one of the elements of an action in restitution, and the amount to be disgorged should plaintiff prove the other two elements, that the gain was at her expense and that it would be unjust for the defendant to retain the gain. The gain would be at her expense because it was from her labor. The unjustness would be discrimination, which would need to be proven at trial. The discrimination would be as a material breach of contract triggering restitution. The contract would have included a promise to be eligible for partnership. Discrimination breaches the contract because even if names for partners are drawn from a hat, discrimination, if proven, would keep her name from the hat, denying her the opportunity to become a partner. The breach would be material if the plaintiff could prove that she would have worked differently, such as working fewer hours, if she had known that she would have had no chance to make partner, or not taken the job.
Kovacic-Fleischer, Candace. "Applying Restitution to Remedy a Discriminatory Denial of Partnership." Syracuse Law Review, 34 no. 3 (1983): 743-802.