Employment Discrimination

Front 1

In order to establish a prima facie case, a Title VII plaintiff bears burden of proving by a preponderance of the evidence that he/she:

Back 1

(1) applied for
(2) an available employment opportunity
(3) for which he/she was qualified
(4) but did not receive
(5) under circumstances which give rise to an inference of unlawful discrimination

Front 2

Can the plaintiff establish a title VII prima facie claim without any evidence of defendant's intent?

Back 2

Yes. the rejection of the qualified candidate for an available position gives rise to an inference of unlawful discrimination. evidence of discriminatory intent is not required to meet plaintiff's initial burden.

Front 3

What does meeting the burden of a title VII prima facie case establish?

Back 3

a rebuttable presumption that the reason for the plaintiff's rejection was unlawful discrimintion. The defendant must then carry the burden of producing evidence (but not the burden of persuasion) of some legitimate, nondiscriminatory explanation for its decision in order to rebut the presumption produced by the prima facie showing.

Front 4

What happens if the defendant fails to come forward with evidence after plaintiff has met his burden of establishing a title VII prima facie claim?

Back 4

Plaintiff is entitled to judgment as a matter of law since no relevant issue of fact remains.

Front 5

What happens after plaintiff establishes prima facie case and defendant meets burden of production?

Back 5

In the absence of any presumption of discriminatory intent, the plaintiff retains the burden of persuading the fact-finder that the defendant's explaination was not the real reason for the challenged decision, but, instead, was merely a pretext for the real reason - intentional discrimination.

Front 6

How can plaintiff prove defendant's reason for termination is only a pretext for intentional discrimination?

Back 6

by directly offering evidence of that motivation OR by indirectly establishing the defendant's asserted justification is not believable

Front 7

What are the two scenarios in Reeves under which an employer could be entitled to judgment as a matter of law even when the plaintiff had offered evidence challenging the believablility of the employer's explanation?

Back 7

(1) the so-called "lurking in the record" situation where the record conclusively reveald a nondiscriminatory explanation that had not been asserted by the defense

(2) where the plaintiff's evidence produced only a "weak" issue of fact on the believability of the defendant's explanation and the record contained abundant and uncontroverted evidence that no discrimination had occurred.

Front 8

Is evidence of other similarly situated workers admissible to prove a defendant's explanation under a title VII claim is pretextual?

Back 8

This is more a question of evidence than employment law. Sprint/United Management v. Mendelsohn held that admissibility of "me too" evidence was not properly subject to a per se approach but rather on an ad hoc basis by the trial judge subject only to an abuse of discretion standard on review.

Front 9

Can a plaintiff establish that a defendant's explanation is pretextual by showing they are more qualified than the chosen candidate?

Back 9

Typically this is not sufficient. Lower courts require a very substantial comparative difference - the disparity be of such significance that no reasonable and impartial decision-maker would have chosen the candidate selected over the plaintiff.

Front 10

Ms. Hardy has been the CFO of Boston Harbor Seafood for 15 years. The owner of the company invited everyone to a redsox / yankees game. She declined. Being a devoted Red Sox fan he was furious and subsequently demoted her. She filed a title VII claim based on sex discrimination. She presented evidence of her superior job performance. The defense never contradicted her testimony. Defense then moved for judgment as a matter of law because she did not establish a prima facie claim. How should the court rule?

Back 10

Plaintiff has established all elements of her prima facie case - she need only establish that she was qualified for the position from which she was demoted and that position remained available after her demotion.

She is not required to offer any evidence of reason for the demotion. The fact that she was qualified and demoted gives rise to the inference of discrimination. So the only conceivable issue is whether she was qualified - a standard she met.

Front 11

Ms. Hardy was demoted and replaced with a woman. She sues for sex discrimination and presents evidence of her superior qualifications and performance. Defendant moves for JNOV because she has not met her prima facie claim. Ruling?

Back 11

Motion denied. Plaintiff does not have to establish that the person who obtained the employment opportunity was a non-member of her protected category. Of course, such evidence would bolster plaintiff's case, but the fact that the plaintiff was rejected in favor of another member of her protected class is not fatal per se to defeating a defense motion alleging failure to establish a prima facie case.

Front 12

Butler was promoted over Annie for a supervisor position. Annie sues for sex discrimination. Annie establishes her prima facie case and employer says she was fired due to her frequent absenses. Annie's witnesses then testify that two other workers had worse records of absences and they had been promoted to supervisor. They also testified that every single person who had been promoted over the past 5 years, uncluding butler, was a memebr of the owner's family.

At the end of trial employer moves for Judgment as a matter of law. ruling?

Back 12

Should be granted.

Plaintiff offered evidence challenging the veracity of the proffered explanation but the plaintiff cannot defeat the motion and get to the jury on the question of pretext because the record conclusively revealed a nondiscriminatory explanation that had not been asserted by the defense - nepotism.

Because of the presence of an uncontradicted explanation, the court could and should grant the defense motion even though the plaintiff did offer evidence from which the jury could have disbelieved the defendant's "official" explanation of unacceptable lateness.

Front 13

William, a black man, was denied a position that was given to a white man. He files a race discrimination claim and presents evidence that he was just as qualifed as the white male. Defense files a motion for judgment as a matter of law because William failed to show he was more qualified and therefore did not establish a prima facie case. Ruling?

Back 13

motion deneid. question is whether he was qualified at all (Patterson)

Front 14

What did the 1991 amendment do to Title VII?

Back 14

Reversed the pricewaterhouse treatment of the "same decision" defense by limiting its impact to the issue of remedies. Thus, plaintiff can establish a violation of title VII even where another factor also motivated that decision. Where there is another legitimate factor, the court may only grant declaratory and injunctive relief and attorneys' fees and cannot award positive relief such as damages or orders of reinstatement, promotion, and the like. Thus, the "same decision" defense goes to remedies rather than liability.

Front 15

What was the holding in Desert Palace?

Back 15

In the absence of any statutory reference to a heightened evidentiary standard for mixed motive cases, the mixed motive analysis was available in cases where the plaintiff's demonstration of discrimination was based on either direct or circumstantial evidence (title VII cases)

Front 16

Don was interviewed for a position and not given an offer. He sues for sex discrimination and presents two comment cards as evidence. One said "Don is capable but we need a woman for our targeted audience." The other says "Don does not seem to be a team player. We told him we wanted someone to play on the firm basketball team, but he made it clear he was not interested."

Employer makes no defense.

How should trial judge decide the case?

Back 16

Judgment in favor of Don limited to declaratory judgment, injunction, and attorneys fees. The firm should not be ordered to hire Don and he should be denied backpay.

This is a classic mixed motives case. Don established that his sex was a motivating factor and he offered direct evidence. Plaintiff will win liability but remedy is limited because of the nondiscriminatory explanation.

Front 17

What if an interview card had the following comment "I am a bit concerned that Don is interested in poetry rather than playing basketball. This causes me to wonder what kind of man he is, and whether he would be a good fit for our office. We should not hire him"

Another cards says "We shouldn't hire Don because he doesn't like animals."

If Don's sex discrimination claim goes to trial, who should win and why?

Back 17

Judgment for plaintiff. Mixed motive case. Direct evidence based on Don's failure to conform to Employer's sex-stereotyped expectations.

Price Waterhouse said that taking adverse action because of plaintiff's failure to conform to a sex steroitype is a form of sex-based conduct. Since Don established sex was a motivating factor, he established liability. The animal expectation is also a factor. Thus remedy will be limited to declaratory relief, attorneys fees, and injunction. no reinstatement or damages.

Front 18

Juan Oliva was fired from his wrestling position. He files suit for discrimination based on national origin. During discovery, defense obtains evidence that Oliva had been accepting bribes from managers. At the end of the trial Oliva objects to a mixed motive instruction. Ruling?

Back 18

The bribery was after-acquried evidence and had nothing to do with the motivation.

Front 19

Fred is racist and gives Paul bad performance evaluations because he is black. The top manager of the company fires Paul based on these evaluations even though he has never met Paul.

Paul files Title VII claim for racial discrimiantion. How should trial judge rule?

Back 19

Judgment in favor of plaintiff. Issue is whether discriminatory intent has to be established on the part of the actual decision-maker or whether it is sufficient to establish that the decision was made on the basis of information provided by an intermediary who was motivated by racial bias. Such cases are refered to as "cat's paw" or "rubber stamp" cases. The bias of the subordinate is imputed to the actual decision-maker.

The decision maker's personal innocence does not spare the company from liability

Front 20

Suppose Fred is Paul's supervisor and gives him bad performance evaluatiosn because he is black. Suppose Katz, the top manager who has never met Paul, conducts an independent investigation into Paul's files and discovers that Paul is consistently late. As a result of this information he discharges Paul.

Paul sues for racial discrimination. Who wins?

Back 20

Judgment for defense. If the actual decision maker conducts an independent investigation and does not realy on the subordinate's input, the court should grant judgment for defense.

Front 21

When is after-acquired evidence of nondiscriminatory basis for action relevant?

Back 21

Not to prove motive, but there is an equitable concern for assessing the parties' relative moral entitlements. Where the defense establishes (burden of persuasion) that the wrongdoing was of a nature that the employer would have terminated the plaintiff on that ground alone, reinstatement and front pay are not appropriate remedies. On the other hand, absent extraordinary circumstances, back pay ordinarily would be available from the time of the discharge to the time of the discovery of the after-acquired evidence.

McKennon

Front 22

Barry was discharged from his paralegal position but the firm allowed him to work out of a spare room until he could find a new job. During this time, he stole confidential documents so that he could bring them to his new employer. When barry sued for racial discrimination, the firm tried to introduce evidence of this misconduct. Ruling?

Back 22

The evidence is inadmissible. The misconduct happened after the discharge so it could not go to the motive or damages.

Front 23

Wilbur, an applicant for a truck driver position, is a member of the Native American Church. As part of some religious practices, members of the church ingest peyote, a cactus containing a hallucinogenic substance. Employer, a transport company, was about to hire Wilbur when he told Wilbur about the company's drug testing policy. In response, Wilbur told the employer about his occasional religious-affiliated peyote use. As a result of Wilbur's disclosure, the transport company refused to hire him. Wilbur then exhausted administrative remedies with the EEOC and brought suit under Title VII alleging religious discrimination.

At trial, defendant asserts that accommodating Wilbur's religious practice of peyote use would have caused increased liability and therefore it constitutes an undue hardship.
1. Will the employer avoid liability for religious discrimination by asserting undue hardship based on increased liability?

Back 23

No.

These facts are extracted from Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481 (10th Cir. 1989). The Toledo court held that where an employer makes no effort "to accommodate the religious beliefs of . . . [an] applicant before taking action against him may only prevail if it shows that no accommodations could have been made without undue hardship." Id. at 1490.

Front 24

Suppose that a woman is fired because of her repeated absences from work in order to undergo fertility treatment. Would discrimination against an employee based on intended or potential pregnancy be covered by Title VII?

Back 24

This issue remains unsettled. Some courts have found viable Title VII actions based on "intended or potential pregnancy." See e.g. Pacourek v. Inland Steel Co., 858 F. Supp. 1393, 1401 (N.D. Ill. 1994). Cf. Krauel v. Iowa Methodist Med. Ctr., 915 F. Supp. 102, 112 (S.D. Iowa 1995) (infertility not subsumed by Title VII's phrase "related medical conditions").

Front 25

You are a first-year associate at the Law Offices of Sue N. Winn, a plaintiffs' employment discrimination firm. A potential client schedules a meeting with you, and tells you that she was fired from her job as a secretary within two weeks of announcing her pregnancy. When she asked why she was fired, her supervisor told her, "We all know that you are going to miss a lot of work because of this pregnancy. Then, once you have the baby, you're going to decide you want to become a stay-at-home mom. We might as well cut our losses, and find someone who'll be here for the long term." Your potential client states that her supervisor answered negatively when asked if there was any other reason for her firing.

You feel that this is clearly a case of discrimination, but are unsure whether Title VII covers pregnancy discrimination. Does it?

Back 25

Congress passed the Pregnancy Discrimination Act of 1978 ("PDA"), which amended Title VII to include § 701(k).

Section 701(k) states, in relevant part: the terms "because of sex" or "on the basis of sex " include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions...

Thus, the PDA does not specify that childbirth and pregnancy are separately protected classes. Instead, "sex " under Title VII is redefined to include pregnancy and childbirth.

Front 26

Green Acres is a grocery store employing 40 employees. Green Acres does not provide its employees with benefits such as health care, disability leave, vacation, or pension benefits.

Debbie, a pregnant cashier, began experiencing pregnancy-related problems in her sixth month. Debbie's doctor diagnosed her with toxemia and advised her that in order to carry the fetus to term, she must immediately begin bed rest and cease working. Green Acres denied Debbie's request for short-term disability leave, and told her she must quit her job if she needed the time off. Green Acres could not guarantee that a position would be available for her when she became ready to work again. As a result, Debbie was forced to choose between her job and the health of herself and her child. Debbie chose to ensure health, and quit her job.

Debbie consults with you as to whether on these facts she has a case for sex discrimination under Title VII. Does she?

Back 26

Nothing in Title VII requires an employer to provide disability leave for pregnancy-related medical conditions. Instead, the statute unambiguously requires those employers who provide benefits to their employees to treat pregnancy, childbirth, and related medical conditions analogously to other conditions which also affect work ability. Thus, where an employer would not offer other employees disability leave for medical conditions, it is not discriminatory to similarly deny pregnant women such benefits. Since Green Acres offers no benefits for any of its employees, Debbie is being treated the same as any other employee with a medical problem or need for long-term leave.

Front 27

Among the amendments to Title VII was an amendment in 1972 that expanded the prohibition against discrimination on the basis of religion. What is this amendment and what did it do?

Back 27

701(j) requires employers to "reasonably accomodate" an employee or prospective employee's religious observance, practice or belief unless the employer demonstrates that doing so would impose an "undue hardship" on the conduct of its business.

Front 28

In Hardison, what three reasons did the supreme court give for finding that the employer had not violated its statutory duty to make a reasonable accomodation to a worker who refused to work on saturdays due to his religion but was under a collective bargaining agreement that assigned shifts based on seniority.

Back 28

First, the duty to accomodate did not require an employer to violate the terms of an otherwise valid CBA, particularly a seniority provision.

Second, the duty to accomodate did not mandate unequal treatment in the sense of requiring the employer to provide a benefit to one employee because of his religious observance that it would deny to another employee who did not possess such a belief.

Third, the accomodation would impose undue hardship upon the employer if required to bear more than a "de minimis" cost.

Front 29

Joe is a devoted catholic and holds mandatory prayer sessions in his company every morning. Fred is a devoted athiest and asked to be excluded from these sessions as a reasonable accomodation. Joe says he cannot provide such accomodation because it would offend his religious conviction and pose an undue hardship on himself. Fred files suit under title VII. Result?

Back 29

First, the undue hardship must be on the business not the president.

Second, even though Fred is an athiest, that does not exempt him from the coverage of 701(j). Athiesm fits well within the statutory definition of religion.

Front 30

Candy Kane is offended by the vulgur language at work because it is against her christian values. When her company ignores her concerns, she brings a Title VII action for religious discrimination. Company files a motion for failure to state a claim upon which relief can be granted. Result?

Back 30

Granted. For relgious based harrassment, plaintiff must allege that the conduct was undertaken by the co-employees because of her religion - not simply that there was unwelcomed conduct.

Front 31

Title VII protects _________.

Back 31

"individuals"

Thus, aliens can state a claim for discrimination on one of the 5 enumerated grounds. For example, if an employer only hired asian aliens and not european aliens, a european alien would have a valid claim.

Front 32

national origin, like beauty, is deemed to be in the eye of the beholder. Why?

Back 32

a claim of intentional discrimination is based on national origin when the decision-maker believes the plaintiff to have a particular national ancestry.

For example, the employer thinks a dark skinned indian is mexican and hates mexicans.

Front 33

What is a BFOQ defense under national origin discrimination?

Back 33

most commonly raised in cases where the defendant claims that possession of a particular ancestry is necessary to promote the authenticity of its operations, such as cases involving persons employed as chefs or in customer-contact positions in ethnic restaurants

Front 34

What is an alternative piece of legislation that protects discrimination based on citizenship?

Back 34

IRCA - as an authorized alien, i.e. lawfully permanent resident alien who has work authorization, she is protected by the IRCA against discrimination on the basis of citizenship and will win unless the company can prove that it rejected her in favor of an equally qualified American citizen

Front 35

Who can file a claim based on race or color?

Back 35

Anyone, be it majority or minority racial group. (McDonald v. Santa Fe Trail Transportation Co.)

Front 36

Is a BFOQ defense available in race or color cases?

Back 36

No, but it can be asserted in national origin discrimination so be sure to look at the nature of the claim.

Front 37

Does P have a claim of racial discrimination if the employer refuses to hire her because her spouse is black?

Back 37

Of the few circuits that have examined this issue, a majority conclude that the plaintiff can state a claim of race-based discrimination under these circumstances. They conclude that since race is at the heart of the employer's policy, the plaintiff's race was a factor in the decision, and therefore, she can state a claim of racial discrimination.

Front 38

In Phillips v. Martin Marietta, the court held that a policy that excluded women with preschool age children but not men was facially discriminatory and remanded the case to determine if sex was a BFOQ.

After this, court developed a sex-plus doctrine. how did these courts distinguish their holdings from phillips?

Back 38

The circuit courts have sought to limit the ruling in Phillips by adding a component to that ruling that was never mentioned by the Phillips court. Under the sex plus doctrine, the fact that the policy is sex-differentiated does not, by itself, establish a prima facie case. Rather, evidence that the employer has implemented a sex-differentiated employment policy will establish a prima facie case only of the P also demonstrate that the "plus" factor that is applied to members of only one sex affects either an immutable characteristic or a fundamental right.

Thus, the right to bear and raise children would be a fundamental right, but the right to hair length is not.

Furthermore, some courts examine whether the "plus" requirement would impose an undue burden on women or men. In Jesperson v. Harrah's the court ruled that it was not an undue burden to require women to wear makeup and not men despite the fact that makeup costs time to apply and money. (9th circuit)

9th circuit also held sex steroptyping is inapplicable to grooming and appearance codes, except where the policy was adopted with an intention to compel women to adhere to stereotyped expectations or to objectify women as sexual objects.

Front 39

Does a disability plan that covers all condition but pregnancy discriminate against women?

Back 39

In General Electric v. Gilbert, the court held that it did not because the monetary value of the comprehensive-save-for-pregnancy benefit package that was provided to females was comparable to the fully comprehensive policy that was made available to males.

In Nashville Gas v. Satty, the court found that denying women the benefit of paid leave after child birth was okay but causing them to lose seniority after returning to work after a childbirth was not. These rulings led to the enactment of the PDA (701(k))

Thereafter, the Supreme Court ruled that the PDA prohibited an employer from providing less favorable pregnancy based health benefits to employee spouses than it did for all other spousal health benefits contained in the company's employee benefit package (Newport News Shipbuilding v. EEOC)

Front 40

Does a pension plan that provides limited years-of-service credit for individuals who took pregnancy leave prior to the enactment of the PDA while giving full credit for disability leaves taken during that period for any other reason constitute sex based discrimination?

Back 40

No. Section 703(h) of Title VII protects the employer from liability for sex-based benefit differentials that are produced by a bonafide seniority system unless those differentials are found to have been the result of an intention to discriminate. (At&t v. Hulteen)

Court reasoned that since pregnancy based discrimination was lawful prior to the enactment of the PDA, the limitation on pregnancy leaves taken during the pre-PDA period could not have been intended by the company to violate Title VII. Thus, the fact that the seniority system operated to the disadvantage of employees on the basis of pregnancy did not render it unlawful.

Front 41

Would an employee benefit package that provided very minimal coverage for paid leave have a disparate impact on women who have to take a longer leave to have babies?

Back 41

Most circuit courts do not recognize the applicabiity of impact analysis in cases alleging discrimination on the basis of pregnancy. The pregnant workers are treated the same as other persons similarly able or unable to work.

Front 42

What if an employer provides pregnant women more benefits than non-pregnant women?

Back 42

Since the PDA's legislative history reflected congress's intention to enhance the ability of women to fully participate in the workforce wihtout sacrificing their participation in family life, the court concluded that the PDA was intended to create only a minimal level of protection that cuold be enhanced by state legislation. Thus, preferential treatment of pregnancy does not constitute sex-based discrimination forbidden by 703(k) or 703(a).

California Federal Savings v. Guerra

Front 43

Is discrimination on the basis of infertility covered by Title VII and PDA?

Back 43

Some circuits hold that since both men and women can suffer from infertility, it is not a form of intentional discrimination on the basis of sex. However, one circuit held that denying a female worker's request for leave in order to undergo in vitro fertilization constituted sex-based discrimination since this surgical procedure is performed only on women.

Front 44

Is being discharged for an abortion covered under the PDA?

Back 44

Abortion is considered a "related medical condition" under the PDA. However, 701(k) expressly states that although an employer is permitted to include abortion coverage within its health benefits plan, it is not required to do so except where the life of the mother is engandered.

Front 45

What is the FMLA?

Back 45

Family and Medical Leave Act of 1993 - Employers with more than 50 employees must provide eligible employees, male and female, with up to 12 weeks of unpaid leave in any 12 month period to provide infant care (after childbirth or adoption) or to provide care for a child, sposue or parent suffering from a "serious health condition." It also requires employers to provide unpaid leave to an employee when it is prompted by that employee's own illness, although the employer can require that the employee exhaust accrued paid leave before requesting unpaid family leave.

Front 46

Can an employer discriminate on the basis of sexual orientation and to what extent?

Back 46

The absence of sexual orientation from Title VII has not totally eliminated consideration in employment discrimination cases involving gay persons and individuals with gender identities.

First, courts are increasingly becoming receptive to claims predicated on the sex stereotyping theory of sex discrimination in Price Waterhouse. Where a complaint avoids alleging discrimination on the basis of sexual orientation per se, but instead alleges discrimination on the basis of sex in the form of adverse action prompted by the plaintiff's failure to conform to the employer's stereotyped version of how a man or woman should act or present him or herself, several courts have recognized the existence of a cognizable cause of action. However, most courts are unable to separate the plaintiff's claim from the defendant's defense argument that its deciion was based on sexual orientation.

The issue also arises in "same sex" sexual harrassment. In Oncale v. Sundowner Offshore Services, the S. Ct. ruled that the relevant issue in all harrassment cases, regardless of the sexual identity of the victim, is whether the harrassment occurred because of the plaintiff's sex. The fact that both the harrasser and victim are ment was not automatically fatal to such a claim.

Front 47

Can a P bring a claim where a bisexual supervisor harrasses both men and women?

Back 47

courts have held that the P cannot establish a claim unless the nature of the harrassment was itself gender-focused or more degrading to members of one sex.

Front 48

Moby Dicks is a private investigating firm with 80 employees. It requires all male investigators to keep a short haircut in order to be able to wear wigs and other disguises. Johnny refused to cut his long hair and was fired. He files a title VII claim. Moby Dicks files a motion to dismis for failure to state a claim upon which relief can be granted. How should trial court rule?

Back 48

Granted.

1. courts will inquire whether the "plus" was immutable or fundamental. here it is not

2. price waterhouse sex stereotyping does not apply to grooming codes

3. though 9th circuit deviated from this pattern, must show grooming code was implemented for purpose of either enforcing a sex stereotype or demeaning the plaintiff's gender group. (Here the policy was for a different purpsoe - disguises).

Front 49

Janet work for a company with a health benefit plan that covers children of employees up to age 20 but excludes pregnancy related costs for those children. Janet's 19 year old daughter is pregnant and sues under title VII for sex discrimination. Ruling?

Back 49

Court will rule in favor of D. Question is whether P is being discriminated against. She is not. The plan applies equally to men and women because men could have female children too.

Front 50

Jane learns she is pregnant and tells her co-worker Sally. A day later she is terminated. Jane files Title VII claim for sex discrimination. She provides no direct evidence of adverse action and D provides an affidavit from Sally that Sally did not tell anyone of the pregnancy. Ruling?

Back 50

In favor of D. Sometimes P can show employer knew of pregnancy by eyesight, but where the alleged adverse action occurred very early in the pregnancy, the courts require other evidence that the employer knew of the pregnancy. Here P has not established causation as a matter of law

Front 51

What are 3 key differences between ADEA and Title VII

Back 51

1. the minimum employee size is 20 as opposed to 15 under Title VII

2. the statute applie to U.S. citizens employed abroad by American corporations or their subsidiaries unless ADEA would violate domestic laws of the foreign nation

3. Statute covers federal, state, and local government workers as well as private sector employees. (elected officials excluded from protection as under Title VII as well as uniformed members of armed forces)

Also note that state and local government workers can still bring suit for equitable relief to challenge acts of age discrimination by state actors under ADEA but they cannot collect monetary damages.

Front 52

What was the ADEA designed to protect?

Back 52

Congress was concerned only with protecting relatively older workers from discrimination that worked to the advantage of their relatively younger competitors. The enemy of 40 is 30, not 50. Thus, statute protects 40 and older.

General Dynamics Land Systems v. Cline.

Front 53

How is age different from the other protected categories under title VII?

Back 53

It is not a discrete characteristic that permanently separates members from nonmembers of the protected group. Rather, it is a continuum along which relative distinctions can be made. This has raised the issue of whether it is fatal to an ADEA plaintiff's claim that he or she was adversely treated in favor of another member of the protected age group. (someone age 50 is passed over for a job given to someone age 45). Court emphasized that the issue was whether the decision was based on the plaintiff's age and not whether the favored individual was within the protected class. Although plaintiff must be older than the preferred candidate, how much older is a fact that goes to the strength of the inference that the decision was motivated by the plaintiff's age.

Front 54

Do mixed-motive claims apply to ADEA?

Back 54

No. Gross v. FBL Financial Services held that since the 1991 amendments did amend the ADEA in other areas, Congress did not intend for the mixed motive provision to apply to age cases.

Front 55

What are the two statutes that prohibit employment discrimination on the basis of disability?

Back 55

The Federal Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA)

Front 56

What is the scope of the Federal Rehabilitation act?

Back 56

only applies to three categories of employers: the federal government, entities receiving federal financial assistance, and federal contractors.

Front 57

The ADA prohibtis covered entities from:

Back 57

discriminating against

a disabled individual

who is otherwise qualified for the position

because of that individual's disability

in the absence of an affirmative defense

Front 58

the prohibition against discrimination based on a disability is composed of two elements:

Back 58

-the duty not to take adverse action
-the duty to make a reasonable accomodation to an individual's known disability that does not impose an undue hardship upon the covered entity

Front 59

A disabled individual is someone who:

Back 59

-presently has, has a record of, or is regarded as having
-a physical or mental impairment
-that substantially limits
-one or more major life activities

Front 60

A disabled person is otherwise qualified for the position in question if she:

Back 60

-can perform the essential job functions
-with or without the assitance of a reasonable accomodation

Front 61

a covered entity can escape liability for an otherwise unlawful act of disability discrimination where it can establish what affirmative defenses?

Back 61

-employment of a disabled individual poses a direct threat to the health or safety of that person or others in the workplace
-being non-disabled is a bona fide occupational qualification
-a facially neutral criterion that produces a disparate impact on disabled individuals is justified as job-related and consistent with business necessity; or
-the entity acted pursuant to the terms of a bona fide insurance plan

Front 62

Under Sutton, what did the term "regarded as" mean? How did this interpretation change?

Back 62

Court ruled that the employee could only be "regarded as" disabled if the employer operated under the mistaken belief that the plaintiff had a physical or mental impairment that was substantially limiting or the employer correctly believed that the plaintiff was impaired but was mistaken about its impact on one or more major life activities.

The 2008 amendment states that a plaintiff can establish that she is regarded as being impaired simply by proving that the defendant's challenged conduct was motivated by the plaintiff's actual or perceived (by the employer) impairment, irrespective of the impairment's actual or perceived limiting impact upon a major life activity. The plaintiff only has to establish a causal link between the adverse action and an actual or perceived impairment.

However "regarded as" will not attach where the impairment is merely transitory or minor. (6 months or less)

Front 63

Jack Bauer files suit against a company and alleges in his complaint that he has been discriminated against because he was regarded as being disabled. The employer moves to dismiss on the argument that Bauer has failed to allege an essential element of a prima facie claim - that he was or had been erroneously regarded as having an impairment that substantially limited a major life activity. How should the judge rule?

Back 63

Motion denied. The issue is whether or not Jack is regarded as disabled. 2008 amendment found plaintiff need only allege and prove that the defendant's challenged conduct was motivated by the plaintiff's actual or perceived impairment irrespective of the impairment's actual or perceived limiting impact on a major life activity.

Front 64

Jack Bauer files suit for discrimination under ADA alleging employer perceived he was disabled. He alleged that during a job interview he mentioned his doctor said he has trouble concentrating for more than 1 hour due to a recent car accident, but the problem will disappear within two months. Company files motion to dismiss. How should judge rule?

Back 64

Motion granted.As a part of the 2008 amendments, the "regarded as" status will not attach to transitory or minor impairments. (less than 6 months)

Front 65

Bob works as a three dimensional sports video game producer. He was fired and files suit under ADA because he has a mental impairment that limits his ability to engage in the major life activity of working. His complaint alleges that his disorder prevented him from engaging in complex 3D thinking and visualization necessary to continue to develop 3D video games. Company files a motion to dismiss. Ruling?

Back 65

Granted. The plaintiff must allege and prove that the impairment substantially limited his ability to work in a "broad class of jobs" not jsut the specific position that he currently held. Here, as in Murphy, the plaintiff only alleged that his impairment substantially limited hi employment in a particular job that matched his unique skills.

Front 66

Susy files a claim under the ADA and alleges that she is unable to perform manual tasks at work, but in a deposition admit that she can perform manual tasks at home such as housecleaning, peronal hygeine, etc. Company file for a judgment as a matter of law on the ground that she was not disabled. Ruling?

Back 66

Granted. Toyota held that where the plaintiff alleges her impairment limits her ability to perform manual tasks, it was an error for the lower court to limit its analysis to whether the impairment limited the ability to perform those manual tasks associated with the plaintiff' job and not also evaluate whether the plaintiff was similarly limtied in the ability to perform manual tasks unrelated to her job that were central to daily life.

Front 67

Bob has epilepsy but takes medication to prevent seizures. He sues under ADA. Employer claims he is not disabled because his impairment is under control and therefore doesn't limit his major life activities. Is the employer right?

Back 67

No. An ADA plaintiff is assessed without consideration of the mitigating factor or device. (2008 amendment)

Front 68

Does a Social Security Administration disability application containing an allegation that the claimant was permanently disabled estop that individual from subsequently claiming in an ADA suit that she is qualified to do a job, thereby rendering her not a qualified person with a disability as a matter of law?

Back 68

The court in Cleveland v. Policy Management Sysyems Corp ruled that plaintiff must attempt to resolve the disparity between the previous sworn statements made to the SSA and the allegeations in the subsequent ADA action. The explanation must be sufficient to warrant a reasonable juror's concluding that assuming the truth of the earlier statement, the plaintiff could nonthless perform the essential functions of her job with or without reasonable accomodation.

Front 69

William applies for a job that requires heavy lifting and moving of machinery on a continuing basis. He reveals during his job interview that he has a coronary artery disease that prevent him from engaging in any strenuous activity and his application was rejected. He files suit under ADA alleging he was denied employment because of his disability. Company files motion to dismiss. Ruling?

Back 69

Granted.In order to fall within statutorily protected class of qualified individual with a disability, the plaintiff must establish he is able to perform the essential functions of the job in question with or without a reasonable accomodation. An employer is not required, as a part of his duty to accomodate, to change the essential nature of the job. Here, the essential job requirements include the ability to engage in strenuous activity. No possible accomodation could suffice without changing the nature of the job.

Front 70

What must you establish for a BFOQ?

Back 70

Membership in the protected classes of sex, religion, or national origin is (a) a bona fide occipational requirement that is (b) reasonably necessary (c) to the normal operation (d) of the defendant's particular business.

Front 71

What grounds of business necessity do the courts usually allow a BFOQ defense?

Back 71

authenticity, privacy, or safety

courts reject arguments that only one sex can enhance a company's profitability

Front 72

Give an example of when safety is a ground for BFOQ. When is it not?

Back 72

In an all male high security prison where rampant violence is common, it would be unsafe to have female gaurds in inmate-contact positions. Dothard v. Rawlinson

Excluding fertile females from high-lead exposure positions is not a BFOQ because the safety of the unconceived children does not go to the essence of the business. (However, prisons need guards that are able to maintain prison security) Additionally, the lead also harmed the male reproductive organs.

Front 73

Describe the 3 affirmative defenses under title VII

Back 73

1. BFOQ for intentional discrimination claims

2. professionally developed tests and 3. bona fide seniority systems under disparate impact claims

Front 74

A company denies Kathy of a parking attendant job which involves repetitive sprinting to and from the parking lot. They have a policy of hiring only men because they believe women do no have the speed to accomplish this task. Kathy files claim under ADA. company files motion to dimiss on the basis that speed is a BFOQ. result?

Back 74

The company is using sex as a proxy for running ability be assuming that all or nearly all women are incapable of running a long distance in a short amount of time. This is a situation where the relevant job skill is not necessarily sex-linked and where it is practical to make an individualized determination of fitness.

motion denied

Front 75

When will an authenticity BFOQ defense be acceptable with regard to the national origin of a chef?

Back 75

Where the identity of the chef i unknown to the public, the argument for BFOQ is weakened. However, where his identity is publicly visible, the court will rule in favor of defense.

Front 76

A hotel hires security guards that are over a certain height and weight. Kathy was denied the position and files a claim alleging the policy creates a disparate impact on women. The hotel brings a BFOQ defense that it wants its customers to feel comfortable and safe and short skinny gaurds will not be able to perform that function. Will this argument prevail?

Back 76

No - BFOQ is not available to disparate impact claims

Front 77

James was denied a position as a hair stylist. He was told that they were looking for someone that could relate to the young, hip, rich clientele. James is 60. The company employs 18 employees including the person hired instead of James who is 37. He files a claim under ADEA and company files motion to dimiss. Result?

Back 77

Motion granted. Remember that unlike title VII, ADEA requires a minimum of 20 employees (not 15). This defense is otherwise waivable if company had not filed a motion to dismiss.

Front 78

James applies for and is denied the position of marketing director with the NY State Tourism Office (a government position). They said they were looking for "new young blood." He sues under ADEA for injunctive relief, declaratory relief, compensatory damages, and punitive damages. How should trial court rule on defendant's motion to dismiss?

Back 78

Granted in part and denied in part. Although supreme court in Wyoming upheld extension of ADEA's substantive provisions to states, the Court in Kimel struck down the ADEA provision giving state workers a private right of action for recovery of monetary damages as a constitutional ineffective abrogation of the state's 11th amendment immunity from money claims in federal court. Thus his claims of compesatory and punitive damages will be stricken.

Front 79

Lenny was a salesman with more than 30 years experience with Company X. Company X's revenues took a nosedive and they decided to cut payroll. They told Lenny, who makes $75,000 per year, that they would have to cut his pay to $30,000 as there were dozens of entry level applicants that would perform the job for that pay. They informed him that the only way he would keep his job is if he took the cut in pay. Lenny sues under ADEA. Company X argues the motivating factor was financial and not based on his age. Lenny files motion for judgment as a matter of law. Result?

Back 79

Motion granted. ADEA expressly prohibits an employer from reducing the wage rate of an older worker in order to avoid violating the statute.

Front 80

A church denied the position of minister to a 60 year old man. They said they were looking for someone younger. The man filed under ADEA and church filed motion to dismiss. Result?

Back 80

Motion granted. Courts have read a ministerial exception into the ADEA involving selection of minister by a church

Front 81

Do impact claims apply to the ADEA? why or why not?

Back 81

Yes. Smith v. City of Jackson

(1) congress intended to have same meaning in both Title VII and ADEA since they involve similar language and were enacted 4 years apart

(2) Griggs was supported by language in Title VII that was similar to ADEA so griggs should apply to ADEA

(3) post-griggs circuit courts contrued ADEA to recognize impact claims

(4) provision based on reasonable factor other than age was redundant in McDonnel Douglas intent cases

(5) impact claims consistent with EEOC's construction of ADEA

Front 82

What affirmative defense is available to impact claims under ADEA?

Back 82

defendant can escape liability by showing that its impact-producing criterion was a reasonable factor. This is a significantly lower threshold than a Title VII defendant is required to meet.

Front 83

When is involuntary retirement permitted under ADEA?

Back 83

where age is not a factor or where there is a BFOQ.

voluntary retirement permitted even where age is a factor. incentive based plans are lawful as long as employer can establish that the plan is consistent with promoting the employment of older workers based on ability rather than age. Several requirements must be met to enforce such an agreement. Where one such requirement is not met, a plaintiff who has received benefits will not be barred from pursuing the purportedly waived statutory claims.

Front 84

A company traditionally awarded 6 weeks paid vacation to those with 25 years experience and 3 weeks to everyone else. When business boomed the company decided it needed more productivityand reduced everyone's vacation time to 3 weeks. those with more than 25 years experience filed suit under ADEA. result?

Back 84

They will be allowed to state a claim of disparate impact under smith v. city of jackson since seniority is linked to age.

Front 85

A company traditionally granted more vacation time to employees with 15 years seniority experience but due to budget cuts, they reduced their vacation benefits. Those employees filed suit under ADEA. Employer acknowledged the reduction had a disparate impact on its more senior workers but maintained that its decision was not based on age but was a necessitiy in order to increase productivity without increasing salary. How will the court rule on company's motion for judgment as a matter of law?

Back 85

granted - although plaintiff stated a valid claim, its reason for generating a disparate impact is a reasonable factor other than age. remember the threshold is lower in ADEA cases for this defense than in Title vII claims

Front 86

A local new orleans Pharmacy chain is looking for a new pharmacist. They require a B.S. in pharmacy. 5% of new orleans' african americans have this degree while 2% of white new orleanians have it. However, nationwide, less than 1% of African Americans have this degree. How will the court rule on a defense motion for JMOL that plaintiff has not established prima facie case where an African American files suit for disparate impact because he doesn't have a B.S?

Back 86

granted. Because this is a local concern, it is likely the court will focus on the degree impact of the local population. The fact that there is a disparate impact nationally will not be determinative.

Front 87

Mr. Snow was the CEO if a Fish company and sought to enter into a contract with a Market company. The president of the Market company refused to enter into an agreement with any company with an African American CEO. Snow filed a 1981 suit and Market filed a motion to dismiss for failure to state a claim. Result

Back 87

granted - CEO does not have standing to bring suit claiming breach of contract - 1981 only protects the right to enter contractual relationships in which the plaintiff would enjoy rights. Since the individual plaintiff - even if he is the sole owner - did not enjoy individual rights under the contract, he could not seek relief