Employment Discrimination

Front 1

When to discuss federal anti-discrimination statutes?

Back 1

ONLY when there is an employer-employee relationship.

Front 2

Who is an employee (v. independent contractor)?

Back 2

Common law definition of master-servant governs.
Key: control of one party over the other

Factors cited by Scotus:
1. whether org. can hire or fire the person
2. to what extent the org. supervises the person's work
3. whether the person reports to someone higher in the org.
4. whether individual shares in profits and losses and liabilities of org.
5. whether parties intended the person to be an employee
6. other factors

Front 3

Employment discrimination statutes?

Back 3

Title VII of Civil Rights Act of 1964

Age Discrimination in Employment Act

Americans with Disabilities Act

Front 4

Title VII of the Civil Rights Act
Covers?

Back 4

Unlawful to: refuse to hire, fire, not promote or otherwise discriminate against individual because of
race, color, religion, sex, or national origin

Front 5

Title VII of the Civil Rights Act

Plaintiffs?

Defendants?

Back 5

Plaintiffs = Members of protected classes
1. race
2. color
3. sex
4. religion
5. national origin (ancestry, language, accent...not citizenship)

Defendants:
1. Employers with more than 15 employees
2. Labor unions
3. Employment agencies

Front 6

Title VII of the Civil Rights Act
Exemptions?

Back 6

1. Religious organization hiring people to perform work related to their religious organization.
2. Private Membership Clubs
3. Indian Tribes

Front 7

Age Discrimination in Employment Act
Covers?

Back 7

refuse to hire, fire, or otherwise discriminate because of person's age (if in protected class)

Front 8

Age Discrimination in Employment Act
Plaintiffs?
Defendants?

Back 8

Plaintiffs: person at least 40 years old alleging they were discriminated against in favor of someone younger

Defendants:
1. Employers w/ more than 20 employees
2. Labor Unions
3. Employment Agencies

Front 9

Age Discrimination in Employment Act
Exemptions?

Back 9

States retain their 11th Amendment immunity from suit.

Front 10

Americans with Disabilities Act
Covered?

Back 10

Prohibits discriminating against a qualified individual on the basis of disability regarding job application procedures, hiring, advancement, discharge, etc.

Also failing to make reasonable accommodations to known physical or mental limitations unless employer can show would create undue hardship.

Front 11

Americans with Disabilities Act
Plaintiffs?

Back 11

Plaintiffs:

A. Member of the protected class
1. ACTUAL PRESENT DISABILITY
2. RECORD OF A DISABILITY
3. REGARDED AS HAVING A PHYSICAL OR MENTAL IMPAIRMENT

Disability defined:
1. mental or physical impairment
2. that substantially limits
3. a major life activity

Qualified Individual:
1. An individual with a disability who
2. w/ or w/out reasonable accommodation
3. can perform the essential functions of the job

Front 12

Americans with Disabilities Act
Defendants?

Back 12

Employers with more than 15 employees for each working day in each of 20 or more calendar weeks in the current or preceeding calendar year AND any agent of such person.

Front 13

Americans with Disabilities Act
Exemptions?

Back 13

States retain their 11th Amendment immunity for the employment section of the ADA.

Front 14

Procedures for enforcing anti-discrimination laws?

Back 14

1. File a charge with the PA Human Rights Commission
a) must file w/in 180 days of the alleged violation
b) a filing is a charge if it may reasonably be construed as a request for the agency to take remedial action

2. File a charge with the Equal Opportunity Employment Commission
a) file w/ing 300 days of the alleged unlawful employment practice or w/in 30 days after receiving notice the state or local agency has terminated the proceeding under local or state law - whichever is EARLIER

3. Obtain a right to sue letter

4. file suit in federal or state court

Front 15

When did the alleged unlawful employment practice occur - discrete act?

Back 15

Discrete Acts: focus on the time of the act, not the time of the consequences

1. Notice of Decision Rule - day zero is when the employee is given notice of employer's decision to take an adverse employment action
*each paycheck is a new act, is day zero (when pay is lower because of discriminatory act)
2. Discovery Rule (minority rule): day zero is tolled until the employee discovered or should have discovered the discrimination occurred

Front 16

When did the alleged unlawful employment practice occur - Hostile Environment?

Back 16

hostile work environment charge won't be time barred as long as:
1. all acts which constitute the claim are part of the same unlawful employment practice
2. at least one act falls w/in the time period

Front 17

How / when to demand right to sue letter?

Back 17

Charging party may demand a right to suit letter from EEOC once 180 days from filing date have passed. May elect to permit EEOC procedures continue after the 180 days - you don't lose the right to demand the letter.

*A plaintiff filing under ADEA has may file in court w/out a right to sue letter.

Front 18

What happens if you permit the agency to process the charge to its conclusion?

Back 18

EEOC will either:
1. find no reasonable cause to believe a violation has occurred and issue a notice of dismissal
2. find reasonable cause, attempt conciliation, and if that fails to resolve the matter and the EEOC does not file suit itself, it will ultimately issue a right to sue letter

Front 19

When must you file in court?

Back 19

w/in 90 days of receipt of right to suit letter

Front 20

Types of claims?

Back 20

1. Individual disparate treatment
Single Motive
Mixed Motive

2. Systematic disparate treatment
Formal Policy of Discrimination
Pattern or Practice Discrimination

3. Disparate impact

4. Harassment
Quid Pro Quo
Hostile Work Environment

5. Retaliation
Opposition
Participation

Front 21

What is Individual Disparate Treatment

Back 21

Employer INTENTIONALLY treats an individual differently from others because of a prohibited characteristic. Must show intent.

Intent may be shown through 2 different types of evidence:
1. Single Motive
2. Mixed Motive

Front 22

Individual Disparate Treatment: Proving a Single Motive Case?

Back 22

(uses a burden shifting scheme)

Prima facie case: P must prove by a preponderance of the evidence a prima facie case.
1. You are a member of a protected class
2. You're qualified for the position
3. You applied for an open position
4. Adverse employment action occurred
5. Position remained open or was filled by someone outside your protected class.

Once the prima facie case is est., a presumption of discrimination is created.

Burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the employment action. If D meets this burden, the presumption of discrimination is dropped.

Burden shifts back to P to prove pretext. P must prove that the LNDR offered by P is false. (this may be enough to convince a fact find that intentional discrimination was the real reason for the employment action) - should also show the real reason was discrimination.

Front 23

Individual Disparate Treatment: What is a Mixed Motive Case?

Back 23

Employment action was taken due to both permissible and impermissible motives.

Front 24

Individual Disparate Treatment: Proving a Mixed Motive Case?

Back 24

1. P proves his prima facie case + offers any direct evidence he has

2. burden shifts to the employer to articulate a legitimate non-discriminatory reason;

3. P shows the impermissible factor was a motivating factor in the employment decision

4. liability attached under Title VII

5. D proves it would have reached the same decision in the absence of the impermissible factor

6. Remedies are limited in Title VII case (no reinstatement, etc); Liability avoided under the ADEA and the ADA

Front 25

What is Systematic Disparate Treatment?

Back 25

Where an employer discriminates against an entire class.

Front 26

Systematic Disparate Treatment - Methods of Proving a claim?

Back 26

Must show intent.
Two methods to prove claim:
1. Formal Policy of Discrimination
2. Pattern or Practice of Discrimination

Front 27

Systematic Disparate Treatment - Formal Policy of Discrimination?

Back 27

1. P Proves employer has facially discriminatory policy.

2. D offers statutory defense
a) Bona fide seniority system (prob. can't force retirement?)
b) Bona fide employee benefits plan
c) Bona Fide Occupational Qualification (doesn't apply to race)

Front 28

Systematic Disparate Treatment - How to show a bona fide occupational qualification?

Back 28

D must prove:

1. qualification is reasonably necessary to normal operation of particular business; and

2. (class) is a proxy for the qualification by showing either:
a) there is a reasonable cause to believe that substantially all of the persons in the class are unable to perform safely and efficiently duties of the job or
b) some employees in the class possess a trait precluding safe and efficient job performance, and it is practically impossible for the employer to deal with the class of employees on an individual basis

Front 29

Systematic Disparate Treatment - Pattern or Practice of Discrimination

Back 29

1. Prima facie case: P must prove that employer's standard operating procedure discriminates against a protected class. May prove through:
a) statistics - comparison groups must be correct in geography and skill
b) anecdotal evidence
c) historical evidence

2. Defendant can rebut:
a) challenge the factual basis of P's prima facie case
b) challenge the inference of discriminatory intent the statistics raise
c) assert a statutory defense - for example
*bona fide occupational qualifications or
*valid voluntary affirmative action

Front 30

Valid Voluntary Affirmative Action Plan?

Back 30

Weber Test: Private, voluntary, race-conscious affirmative actions must:
1. aim to remedy a manifest imbalance
2. in traditionally segregated job categories
3. and cannot unduly trammel the rights of disfavored groups

Front 31

Disparate Impact Discrimination - what is it?

Back 31

employer's facially neutral policies, regardless of intent, adversely affect a protected class more than others, and cannot be adequately justified. Need not show intent.

Front 32

Systematic Disparate Impact - making out a case?

Back 32

P makes out a prima facie case:
1. Member of the protected class
2. A particular employment practice (can include subjective decision making); or if can't name, then the bottom line.
3. Causation between practice and impact.
4. Disproportionate Impact (if protected group pass right is less 80% of pass right of non-protected than evidence)

Defendant's rebuttal:
1. challenge P's prima facie case
2. Employer's use does not cause impact
3. Business necessity & job relatedness
4. Argue an exception applies:
a) professional developed test
b) Bona Fide Seniority System
c) Bona Fide Merit and Piecework Systems
5. ADEA case - show decision was based on reasonable factors other than age

Plaintiff's response
Show an Alternative Employment Practice: One that serves the same purposes as the contested practice but that is not discriminatory and is reasonable to expect the employer to use.

Front 33

What is Harassment?

Back 33

employee's terms or conditions of employment are altered due status as a member of protected class.
Two types of claims:
quid pro quo
hostile work environment

Front 34

What is quid pro quo?

Back 34

sexual conduct is a condition of tangible employment benefits.

There are no formal defenses, if P proves her claim, the employer is vicariously liable for the supervisor's actions.

Front 35

Hostile work environment case?

Back 35

P must prove:
1. member of the protected class
2. conduct was because she is a member of the protected class
3. behavior was unwelcome (only applies to sex)
4. behavior was severe or pervasive (consider frequency, physical threat, humiliation, etc)


Employer liability:

1. Harasser is a supervisor = employer is vicariously liable unless it can prove
a) used reasonable care to prevent & promptly corrected
b) and employee unreasonably failed to use employer's reporting procedures

2. Harasser is a Co-Worker = employer held to a negligence standard if P can prove
a) employer knew or should have known about it
b) employer failed to take prompt remedial action

Front 36

What is Retaliation?

Back 36

employee may not be retaliated against for exercising rights under a discrimination statute

Front 37

Types of retaliation cases?

Back 37

1. Opposition
2. Participation

Front 38

How to make out a retaliation case?

Back 38

Prima Facie Case:

1. P was engaged in statutorily protected expression:
a) Opposition conduct - P explicitly challenging employment practice of employer. Includes behavior not w/in formal filing of a charge. P must demonstrate reasonable, good faith belief the conduct complained of is unlawful.
b) Participation Conduct - P's actions were w/in the formal complaint structure of the EEOC or PHRC

2. Employer aware of the conduct

3. P suffered an adverse employment action (inside or outside the workplace)
- materially adverse action = it would dissuade a reasonable worker from making a charge of discrimination / supporting one

4. Causal connection between the protected expression and the adverse employment action


D's rebuttal: Once P establishes prima facie case, burden shifts to D to articulate LNDR for the adverse employment action.

Burden shifts back to P to show LNDR was pretextual.

Front 39

Pregnancy?

Back 39

is sex discrimination.

Can't treat pregnancy different than other medical conditions; can give pregnancy beneficial treatment.

Front 40

Gender specific dress code?

Back 40

Okay unless poses unequal burden on one sex.

Front 41

Sexual orientation discrimination?

Back 41

Not covered by Title VII

Front 42

Religion - when don't you need to accommodate?

Back 42

When no reasonable accommodation has been offered / identified.

Front 43

Individual Disparate Treatment and religion cases?

Back 43

P may need to show employer is aware of the religious belief.

Must be a bona fide religious belief.

Exemptions: Religious organizations and curriculum
*The bona fide occupational qualification defense is available on the basis of religion.

Front 44

When is mandatory retirement age okay?

Back 44

1. Bona fide executives may be mandatorily retired at age 65 if:
a) bona fide exec. or in a high policy making position
b) make over $44k per year

Front 45

In an ADEA case, when can you use a bona fide employee benefit plan statutory exemption?

Back 45

Lower benefits for older workers permitted where the cost of providing those benefits to older workers is not less than providing them to younger workers.

Front 46

What is a physical or mental impairment?

Back 46

Physiological disorder or condition, cosmetic disfigurement, anatomical loss

Things in normal range of personality traits don't count (like weight).

Front 47

What are major life activities?

Back 47

major bodily functions, caring for ones self, seeing, hearing, speaking, breathing, standing, bending, etc.

Front 48

To determine whether a person has a disability, you determine whether the person is substantially limited from performing the major life activity without regard to medication, except when?

Back 48

Glasses and / or contacts.

Front 49

Role of employer's job description in determining essential job functions?

Back 49

accorded deference in determination

Front 50

is attending work an essential job function?

Back 50

regular and timely attendance at work is an essential job function

Front 51

is cost a factor is determining reasonable accommodation?

Back 51

yes

Front 52

Defenses to a separate claim of failure to provide reasonable accommodation?

Back 52

1. LNDR (i.e. they were not motivated by the disability)

2. Undue hardship: an accommodation requiring difficulty or expense. Consider: size and financial resources of employer;

3. Direct threat: significant risk to the health and safety of others

4. Job related and Consistent with Business Necessity and performance can't be accomplished by reasonable accommodation.

Front 53

Who bears burden of showing reasonable accommodation?

Back 53

P bears the burden of proving a reasonable accommodation exists.

Front 54

ADA and addicts?

Back 54

Covers addiction, but not current users.

Front 55

Medical examination and inquiries for job applicants?

Back 55

employer may inquire into applicant's ability to do the job and may condition offer of employment on the results of a medical examination provided that all entering employees are subject to a medical exam and the results are confidential (tests for illegal drugs are not part of medical exam)

Front 56

Medical examination and inquiries for employees?

Back 56

only may do so if is job related and consistent w/ business necessity. Results are confidential.

Front 57

Goal of remedies?

Back 57

Make successful plaintiff whole.

Front 58

Legal Remedies?

Back 58

Limited to claims of intentional discrimination.

Includes compensatory damages,

punitive damages (only where intent was malice or reckless indifference).

Liquidated damages (only available under ADEA where employer knew or showed reckless disregard)

Front 59

Title VII Caps on damages?

Back 59

cap on compensatory and punitive damages combined is based on number of employees

Front 60

Employer's vicarious liability for discriminatory employment decisions of managerial agents for punitive damages?

Back 60

Actor was acting in managerial capacity and was acting w/in the scope of their employment and the employer did not use good faith efforts to comply.

Front 61

Equitable relief?

Back 61

1. Reinstatement
2. Retroactive seniority
3. Affirmative action relief
4. Backpay (from date plaintiff 1st lost wages due to discrimination to 2 years forward) Backpay ends on death or employee, date of judgment, or date after acquired evidence found
5. Front Pay (substitute for reinstatement)

Front 62

Attorneys Fees?

Back 62

available under all statutes for recovery of attorneys' fees and costs to the prevailing party (party must be awarded some relief); fees may be awarded to both Ps and Ds