Discrimination

Front 1

42 USC 1981

Back 1

RACE discrimination prohibited

Front 2

42 USC 1981 minimum # E and cap for damages?

Back 2

no minimum E
no max for damages

Front 3

Title VII protects what characteristics?

Back 3

Race
National Origin
Sex
Color
Religion
NOT sexual orientation

Front 4

What agency enforces Title VII?

Back 4

EEOC

Front 5

Title VII minimum # E

Back 5

15

Front 6

ER individually liable for Title VII violation?

Back 6

No - ER not personally liable for this statute. Cf. FMLA

Front 7

Title VII timeline

Back 7

Go to EEOC first
180 days for EEOC to investigate
after RTSL issued by EEOC,
90 days for E to go to Court

Front 8

Title VII relief available? caps?

Back 8

back pay
front pay
injunctive relief

compensatory/punitive max:
small ER max: 50K
large ER max: 300K

Front 9

BFOQ defense - elements and exception?

Back 9

necessary to normal operation of business, considering the essence
no adequate alternative exists

NEVER for race

Front 10

Title VII retaliation provision?

Back 10

Retaliation is prohibited.
Materially adverse.

Front 11

What is materially adverse for a Title VII retaliation provision?

Back 11

dissuade a reasonable E from making or supporting a charge of discrimination

Front 12

Disparate Impact - how different from disparate treatment? (definition)

Back 12

facially neutral policy that has a disparate impact on a protected class of E

Front 13

Disparate Impact oddities - what is not covered, what is not available to E?

Back 13

This is not applied to RELIGION
Money damages

Front 14

Disparate impact defense for ER?

Back 14

1. Point to policy/practice that led to the disparity and
2. Justify on basis of business necessity and
3. no adequate alternative

Front 15

McDonnell- Douglas

Back 15

Burden shifting test substitutes for direct evidence

after E denied position is qualified for, someone else outside of class got it when not more qualified

Front 16

Mixed Motive test

Back 16

If impermissible motive found, ER may be found liable, BUT if ER can show would have taken the same action, will limit the damages

Front 17

Sexual stereotyping

Back 17

Pricewaterhouse
Sexual orientation could come in under this

Front 18

English-only in the office. Okay?

Back 18

EEOC doesn't like this policy.
Must have a safety/good reason to require this.

Front 19

Dress/Appearance

Back 19

Okay to have different standards for wo/men.
NOT okay if imposes unequal burden on one sex.

Front 20

Religious discrimination - what are two things special about it?

Back 20

only disparate treatment claim
failure to accommodate available, but de minimus std (lower than ADA)

Front 21

Affirmative Action plan

Back 21

private ER must show done to remedy a manifest imbalance in traditionally discriminated category AND
designed to be temporary

Front 22

Affirmative action plan for govt Ker?

Back 22

some have to have this if 50+ E and $50K+ govt contract

Front 23

PDA

Back 23

gives no add'l rights, just makes sure don't lose any. protects STATUS only, not conduct or reproductive rights

Front 24

Is there an accommodation requirement for pregnancy?

Back 24

No.

Front 25

Definition of sexual harassment:

Back 25

unwelcome advances or requests of sexual nature that makes submission a condition of employment, creating HWE

Front 26

Is there a claim for same-sex sexual harassment?

Back 26

Yes

Front 27

Standard for harassing conduct

Back 27

Objectively and subjectively harassing and unreasonable
Totality of circumstances; if wrong context, maybe not H

Front 28

harassing conduct must be:

Back 28

severe or pervasive on a sliding scale

Front 29

Liability for Supervisor who sexually harasses E AND

Defense for ER?

Back 29

STRICT if tangible job detriment (Farragher and Ellerth)

Affirmative defense if reasonable measures were taken by ER and E unreasonably failed to take advantage of them

Front 30

Liability for ER when coworker sexually harasses E?

Back 30

ER knew/should have known about it and failed to respond

Front 31

Liability for ER when third-party sexually harasses E?

Back 31

ER knew/should have known about it and failed to respond

harder for ER to know in this case

Front 32

ADEA - who is eligible? re: the E and the ER...

Back 32

E who is 40+ yo and works for ER who has 20+ E

TWENTY Employees

Front 33

ADEA standard for liability for both Es in protected class

Back 33

Substantially younger (15-20 years)

Front 34

ADEA relief available?

Back 34

back pay, front pay, injunctive relief, attorney's fees

willful violation doubles the damages

less like EEOC, more like FMLA

Front 35

RFOA

Back 35

for disparate impact claims, this is a defense; saving money is a fine claim to win

Front 36

ADEA have mixed motive defense?

Back 36

No - E always has burden to show

Front 37

Older workers' benefits protection act

Back 37

If ask E to give these rights up, must:
advise E in writing of right to counsel
give 21 days to consider waiver of rights
give 7 days to revoke waiver

Front 38

If ER fails to comply with OWBPA:

Back 38

Any waiver is not binding

ER will not get $ back, but it will get credited to any remedy from a suit

Front 39

ADA: how many employees?

Back 39

15

Front 40

ADA: who enforces it?

Back 40

EEOC

Front 41

Qualifying disability under ADA?

Back 41

1. mental/physical impairment that substantially limits a major life activity
2. E can perform essential function of job with OR without accommodation
3. Protected if regarded as, has record of, or associates with person who has one

Front 42

Mitigating measures for ADA?

Back 42

done away with; only one left is glasses

Front 43

ADA coverage of temporary conditions:

Back 43

NONE

Front 44

ADA ER duty?

Back 44

Accommodation. Work with E in interactive process to craft RA

Front 45

Reasonable accommodation?

Back 45

depends on context of ER
not required of ER IF an undue burden

Front 46

Direct threat defense for ADA

Back 46

even if E is qualified, ER can deny if poses a direct threat to self/others

Front 47

ADA protects status of...

Back 47

alcoholic or drug addict/ recovering addict

not the use

Front 48

GINA

Back 48

genetic information is protected
ER must take care with medical history, which extends to history of family members

Front 49

USERRA minimum number of E and how many ERs?

Back 49

No minimum # of Es

Almost all ERs covered

Front 50

USERRA's enforcing agency is...

Back 50

DOL

Front 51

USERRA does what?

Back 51

for up to 5+ years of absence, protects service members/family who leave for military service in/voluntarily

Front 52

USERRA eligibility requirements:

Back 52

E gives advance notice of leaving job when possible
Discharged in honorable conditions
E timely reapplies for job

Front 53

USERRA tenure provision

Back 53

the longer the E is gone, the longer the job is safe upon return

Front 54

USERRA stance on promotions

Back 54

non-meritorious increases are awarded

Front 55

USERRA exception

Back 55

undue hardship - if ER cannot provide same/equal position, doesn't have to rehire

HIGH standard ie if job eliminated when gone