Employment Discrimination

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EMPLOYMENT DISCRIMINATION - PA

Title VII - Potential Plaintiffs

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Current employees, former employees and applicants suing for discrimation on the basis of:

1) race

2) color

3) religion

4) sex (including pregnancy-or abortion-related condition but not including sexual orientation) or

5) national origin

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EMPLOYMENT DISCRIMINATION - PA

Title VII - Defendants

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Employer with at least 15 employees that work at least 20 weeks during a calendar year.

An employer's agents and employment agencies and labor organizations are also prohibited from discriminating.

Indian Tribes and bona fide private membership clubs are exempt.

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EMPLOYMENT DISCRIMINATION - PA

Title VII - Employee Defined
Factors to consider:

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1) Whether the organization can hire or fire the individual or set the rules and regulations of the individuals work;

2) Whether and to what extent the organization supervises the individual's work;

3) Whether the individual reports to someone higher in the organization;

4) Whether and to what extent the individual is able to influence the organization;

5) Whether the parties intended the individual to be an employee, as to expressed in written agreements; and

6) Whether the individual shares in the profits, losses and liabilities of the organization.

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EMPLOYMENT DISCRIMINATION - PA

Title VII - Specific issues regarding religion

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An employer must accomodate the religious practices and observances of his employees or prospective employees unless the employer is unable to provide reasonable accommodation with undue hardship on the conduct of his business.

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EMPLOYMENT DISCRIMINATION - PA

Title VII - Definition of an "undue hardship" with regard to religion accommodations

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1) imposes more than a de minimis cost on the employer, or

2) requires the employer to violate federal law.

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EMPLOYMENT DISCRIMINATION - PA

Title VII - Prima Facie Case for Religious Discrimination

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Plaintiff must show:

1) that he holds a bona fide religious belief that conflicts with a job requirement;

2) he informed his employer of his belief;

3) he was disciplined for failing to comply with the conflicting requirement.

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EMPLOYMENT DISCRIMINATION - PA

Title VII - Employer's Defenses to Religious Discrimination

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Statutory exemptions include:

1) a religious organization with regard to work that is connected with the religious activities of the entity;

2) a religious educational institution if its curriculum is directed toward the propagation of that religion; or

3) an entity in which religion is a bona fide occupational qualification (BFOQ) that is reasonably necessary to the normal operation of the particular business.

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EMPLOYMENT DISCRIMINATION - PA

The Age Discrimination in Employment Act of 1967 (ADEA)
Plaintiffs

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Employees who are at least 40 years of age who allege discrimination (in favor of someone who is younger)

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EMPLOYMENT DISCRIMINATION - PA

The Age Discrimination in Employment Act of 1967 (ADEA)
Defendants

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Employer who has at least 20 employees who work at least 20 weeks during a calendar year.

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EMPLOYMENT DISCRIMINATION - PA

The Age Discrimination in Employment Act of 1967 (ADEA) Defenses

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1) Good Cause - not unlawful to discharge or otherwise discipline an individual for good cause;

2) Bona fide executive or high policymaking position for the two year period immediately before retirement and receive yearly retirement benefits of at least 40K

3) Public Safety Officers - Police and firefighters may be subject to mandatory retirement or not hired due to age.

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EMPLOYMENT DISCRIMINATION - PA

The Age Discrimination in Employment Act of 1967 (ADEA)
Specific Issues - Bona fide Employee Benefit Plan

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Benefits provided pursuant to a bona fide employee benefit plan are protected under the ADEA. However, lower benefits for older workers are permitted where, for each benefit or benefit package, the actual cost incurred on behalf of the older worker is no less than the incurred on behalf of younger worker.

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EMPLOYMENT DISCRIMINATION - PA

The Age Discrimination in Employment act of 1967 (ADEA)-Early Retirement Incentive Plans

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Under very specific conditions, the ADEA allows a benefit plan that is voluntary early retirement incentive plan.

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EMPLOYMENT DISCRIMINATION - PA

The Age Discrimination in Employment Act of 1967 (ADEA) - Older Workers Benefit Protection Act

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Authorizes knowing and voluntary waivers of ADEA rights, but the waiver agreement must:

1) be written in a manner calculated to be understood;

2) make specific reference to ADEA claims;

3) not waive rights arising under its execution;

4) be supported by consideration;

5) advise the individual in writing to consult an attorney;

6) provide at least 21 days for the employee to consider her decision; and

7) provide seven-day period during which the waiver may be revoked.

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EMPLOYMENT DISCRIMINATION - PA

The Americans with Disabilities Act of 1990 (ADA)- Basic Prohibition

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An Employer must not discriminate against a qualified individual; compensation; job training; or other terms conditions, and privileges of employment.

Employer must provide reasonable accommodations to known physical or mental limitations of an otherwise qualified individual with a disability unless the employer can demonstrate that the accommodation would cause undue hardship.

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EMPLOYMENT DISCRIMINATION - PA

The Americans with Disabilities Act of 1990 (ADA) - Plaintiffs

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A plaintiff must be a qualified individual with a disability.

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EMPLOYMENT DISCRIMINATION - PA

The Americans with Disabilities Act of 1990 (ADA) - Meaning of Disability

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Disability includes: actual impairment, a record of an impairment; and being regarded as having an impairment.

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EMPLOYMENT DISCRIMINATION - PA

The Americans with Disabilities Act of 1990 (ADA) - Actual Disability

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A physical or mental impairment that substantially limits a major life activity of an individual.

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EMPLOYMENT DISCRIMINATION - PA

The Americans with Disabilities Act of 1990 (ADA) - Three Steps to determine of there is actual disibility:

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1) Is there a physical or mental impairment

2) Does the life activity upon which the plaintiff relies constitutes a major life activity under ADA

3) Does the impairment substantially limit the major life activity? Factors considered include: the nature and severity of the impairment, the duration of the impairment, and the permanent or long-term impact of the impairment.

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EMPLOYMENT DISCRIMINATION - PA

The Americans with Disabilities Act of 1990 (ADA) - Record of Impairment

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A past record of impairment that substantially limits a major life activity places an individual within the protected class even if the individual is not currently impaired.

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EMPLOYMENT DISCRIMINATION - PA

The Americans with Disabilities Act of 1990 (ADA)- Regarded as having an impairment

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Three ways in which individual may be regarded as having an impairment:

1) an employer mistakenly believes that a person has a physical impairment that substantially limits a major life activity;

2) An employer mistakenly believes that an actual, non-limiting impairment substantially limits a major life activity; or

3) The individual has a physical or mental impairment that substantially limits a major life activities only as a result of the attitudes of others.

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EMPLOYMENT DISCRIMINATION - PA

The Americans with Disabilities Act of 1990 (ADA)- Qualified Individual with a Disability

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A qualified individual with a disability is one who has a disability but who can perform the essential job functions with or without reasonable accommodation. Providing reasonable accommodation may include altering employee facilities and equipment, adjusting work schedules, modifying examinations, and providing readers and interpreters The cost of the accommodations cannot be disproportionate to the benefit.

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EMPLOYMENT DISCRIMINATION - PA

The Americans with Disabilities Act of 1990 (ADA)- Defendants

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Employer has at least 15 employees who work each workday in at least 20 weeks during a calendar year.

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EMPLOYMENT DISCRIMINATION - PA

The Americans with Disabilities Act of 1990 (ADA)- Claims available

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Plaintiff must show that the employer:

1) Based his decision on the plaintiff's disability (disparate treatment);

2) Used standards, criteria, or methods of administration that have the effect of discrimination on the basis of the diability (disparate impact) or;

3) Failed to provide reasonable accommodation.

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EMPLOYMENT DISCRIMINATION - PA

The Americans with Disabilities Act of 1990 (ADA)- Defenses Available

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The Employer may assert that:

1) The employment action was not motivated by the disability, but that he had a legitimate, nondiscriminatory reason;

2) He is not able to provide reasonable accommodations to the plaintiff without undue hardship;

3) the Plaintiff is not qualified because she poses a direct threat to the health or safety of herself or others that cannot be eliminated by reasonable accommodation;

4) His qualification standards that screen out or deny a job or benefit to an individual with a disability are job related and consistent with business necessity, and performance cannot be accomplished by reasonable accommodation.

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EMPLOYMENT DISCRIMINATION - PA

The Americans with Disabilities Act of 1990 (ADA)- Specific Issues Under the ADA - Drug Users

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Current users of illegal drugs are excluded from coverage. A safe harbor provision provides an exception to the exclusion for individuals who are rehabilitated and have been drug-free for a significant period of time.

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EMPLOYMENT DISCRIMINATION - PA

The Americans with Disabilities Act of 1990 (ADA)- Specific Issues Under the ADA - Medical Examinations and Inquires

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An employer may condition an offer of employment on the results of a medical examination only if all entering employees are subject to the medical examination and the results are confidential. Medical examinations given after an offer of employment has been made but before the commencement of employment need not be job related or consistent with business necessity. An employer cannot require employees to submit to medical examinations or inquires unless they are job related and consistent with business necessity.

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EMPLOYMENT DISCRIMINATION - PA

The Americans with Disabilities Act of 1990 (ADA)- Specific Issues Under the ADA - Protected Relationships

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The ADA prohibits an employer from discriminating against a qualified individual because of the known disability of another individual with whom the qualified individual is known to have a relationship or association. To bring an action, the plaintiff must show that: the third party is an individual with a disability, the employer was aware of the third party's disability, and the employee was fired because of the realtionship.

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EMPLOYMENT DISCRIMINATION - PA

Types of Claims:

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Claims may be categorized as either treatment or impact claims and as either individual or group claims.

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EMPLOYMENT DISCRIMINATION - PA

Treatment Claims

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Require a showing of the intent to discriminate on the basis of a prohibited characteristic and may be both individual and group (systematic) claims.

Harassment and retaliation are treatment claims, but courts have developed separate prima facie cases and defenses for these claims.

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EMPLOYMENT DISCRIMINATION - PA

Imact Claims

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Focus on the effect of an adverse employment action; intent to discriminate is not required. Unless otherwise noted, these claims apply to all three statutes.

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EMPLOYMENT DISCRIMINATION - PA

Individual Disparate Treatment

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Exists when an employer treats an individual differently from others because of a prohibited characteristic.

The intent may be shown through two different types of evidence: circumstantial or direct.

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EMPLOYMENT DISCRIMINATION - PA

Individual Disparate Treatment - Proving a case through Circumstantial Evidence: Plaintiff's Prima Facie Case

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Plaintiff must prove by a perponderance of the evidence:

1) She is a member of a protected class;

2) she applied for an open position (does not apply in a termination case)

3) She is qualified for the position (or, in a termination case, was performing satisfactorily) and;

4) She suffered an adverse employment action (fired, demoted, rejected, transferred)

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EMPLOYMENT DISCRIMINATION - PA

Individual Disparate Treatment - Proving a case through Circumstantial Evidence

Effect of Prima Facie Case

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Once the prima facie case is established, a presumption of discrimination is created. If the employer remains silent, the plaintiff wins.

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EMPLOYMENT DISCRIMINATION - PA

Individual Disparate Treatment - Proving a case through Circumstantial Evidence

Employer's Burden of Production

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Once the Plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason (LNDR)for the employment action, but he need not convince the fact finder that this articulated reason actually motivated his actions.

If the defendant meets the burden, the presumption of discrimination will be dropped.

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EMPLOYMENT DISCRIMINATION - PA

Individual Disparate Treatment - Proving a case through Circumstantial Evidence

Burden shifts to Plaintiff

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Once the employer articulates a legitimate non-discriminatory reasona, the burden shifts to the plaintiff to prove pretext. The plaintiff must prove that the legitimate non-discriminatory reason offered by the defendant is not the real reason behind the employment action, that the real reason was discrimination, and that the discrimination was the determinative factor in the decision.

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EMPLOYMENT DISCRIMINATION - PA

Individual Disparate Treatment - Proving a case through Direct Evidence

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Direct evidence is evidence, which if believed, proves a fact without inference or presumption. Only the most blatant statements or actions that indicate discrimination on the basis of an impermissible factor constitute direct evidence of discrimination.

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EMPLOYMENT DISCRIMINATION - PA

Individual Disparate Treatment - Mixed Motive Case

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The mixed motive case is a case wherein an employment action was taken because of both permissible and impermissible motives.

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EMPLOYMENT DISCRIMINATION - PA

Individual Disparate Treatment - Mixed Motive Case: Burden Shifting Scheme

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1) The plaintiff proves her prima facie case plus offers any direct evidence she may have;

2) The burden shifts to the employer to articulate a legitimate, non-discriminatory reason;

3) The plaintiff shows that the impermissible fact was a motivating factor in the employment decision, and lialibity attaches;

4) The defendant proves that he would have reached the same decision in the absence of the impermissible factor.

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EMPLOYMENT DISCRIMINATION - PA

Individual Disparate Treatment - Mixed Motive Case: Limited remedies

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If the Plaintiff carries her burden, the court may grant declaratory relief, injunctive relief, attorney's fees and costs but may not award damages or an order of reinstatement, hiring, promotion or payment.

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EMPLOYMENT DISCRIMINATION - PA

Systematic Disparate Treatment Discrimination

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Systematic disparate treatment is present where an employer discriminates agains an entire class.

This can be demonstrated by policies of discrimination or by patterns and practices of discrimination.

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EMPLOYMENT DISCRIMINATION - PA

Systematic Disparate Treatment Discrimination - Plaintiff's Proof

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The Plaintiff must prove that the employer has a facially discriminatory policy that allows or mandates adverse employment actions on the basis of unlawful characteristics.

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EMPLOYMENT DISCRIMINATION - PA

Systematic Disparate Treatment Discrimination - Defendant's Statutory Defenses

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Once the plaintiff proves that there is a discriminatory policy, the defendant can only escape liabilty with a statutory defense.

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EMPLOYMENT DISCRIMINATION - PA

Systematic Disparate Treatment Discrimination -Defendant's Statutory Defenses: Bona Fide Occupational Qualification (BFOQ)

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The bona fide occupational qualification (BFOQ) defense allows an employer to take action otherwise prohibited where age, sex, religion, or national origin is a BFOQ reasonably necessary to normal operation of the particular business and there is reasonable cuase to believe that including the protected class would preclude safe and efficient job performance.

Be careful in using BFOQ defense - BFOQs ARE AVAILABLE ONLY UNDER TITLE VII AND THE ADEA and are narrowly read and rarely found.

The defense is limited to discrimination related to the particular job from which the individual is excluded where the job qualification relates to the essence or the central mission of the employer's business.

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EMPLOYMENT DISCRIMINATION - PA

Systematic Disparate Treatment Discrimination -Defendant's Statutory Defenses: Bona Fide Seniority System

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It is not unlawful for an employer to apply different standards of compensation pursuant to a bona fide employment system if the system is based on the length of service and does not intentionally discriminate against a protected class. A seniority system is not bona fide if it requires or permits involuntary retirement of a protected individual because of his age.

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EMPLOYMENT DISCRIMINATION - PA

Systematic Disparate Treatment Discrimination - Patterns and Practices of Discrimation - Prima Facie Case

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If there is no direct evidence, the plaintiff may prove her case through circumstantial evidence. The plaintiff may use statistics to show that the employer's workforce is divergent from what the workforce would be in the absence of discrimination.

Comparison groups must be from the same geographic area and hold positions requiring the same level of skill as that required in the workforce.

The plaintiff may also present historical evidence of the treatment of the protected class as well as testimony from individual members of the protected class.

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EMPLOYMENT DISCRIMINATION - PA

Systematic Disparate Treatment Discrimination - Patterns and Practices of Discrimination: Defenant's Rebuttal

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In his rebuttal, the defendant may:

1) challenge the statistic by showing that the plaintiff used the wrong groups for the comparison;

2) challenge the statistical device used;

3) provide his own statistical calculations.

The Defendant may also offer nondiscriminatory reasons to explain the statistical picture and rebut the showing of intent to discriminate.

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EMPLOYMENT DISCRIMINATION - PA

Systematic Disparate Treatment Discrimination - Patterns and Practices of Discrimination: Voluntary Affirmative Action

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Voluntary affirmative action is lawful under Title VII. To be valid, voluntary race -conscious affirmative action plans:

1) must aim to remedy a manifest imbalance,

2) in traditionally segregated job categories, and

3) cannot unduly trammel the rights of disfavored groups.

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EMPLOYMENT DISCRIMINATION - PA

Systematic Disparate Impact Discrimination

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Systematic disparate impact discrimination exists when an employer's policies, regardless of the intent, adversely affect a protected class more an others and cannot be adequately justified. The basic test is whether a facially neutral policy or practice disproportionately impacts a protected class.

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EMPLOYMENT DISCRIMINATION - PA

Systematic Disparate Impact Discrimination - Plaintiff's Prima Facie Case

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The plaintiff must prove that the employer uses a particular employment practice that causes disparate impact on the basis of a protected characteristic. Statistics are used to show the impact on the protected class as a whole.

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EMPLOYMENT DISCRIMINATION - PA

Systematic Disparate Impact Discrimination - Plaintiff's Proof: The "Bottom Line" exception

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The burden is on the plaintiff to identify the particular employment practice that causes a disparate impact, but if the plaintiff cannot tell which practice causes the impact becuase the employer does not keep such records, the plaintiff can use the "bottom line" statistic to prove the prima facie case.

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EMPLOYMENT DISCRIMINATION - PA

Systematic Disparate Impact Discrimination - Plaintiff's Proof: Amount of Impact and EEOC's "Four-Fifths Rule"

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There is no statutory definition of "disparate." Under the EEOC's four-fifths of the rate for the group with the highest rate, it will be regarded as evidence of adverse impact.

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EMPLOYMENT DISCRIMINATION - PA

Systematic Disparate Impact Discrimination - Defendant's Rebuttal: Employer's Practice Does Not Cause Impact

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If the plaintiff establishes disparate impact by national data or with the experience of other employers, the employer may assert an affirmative defense that his own use of the practice does not have a disparate impact.

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EMPLOYMENT DISCRIMINATION - PA

Systematic Disparate Impact Discrimination - Defendant's Rebuttal: Business Necessity and Job Relatedness

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The employer must demonstrate that the challenged practice is job related for the position in question and consistent with business necessity. Discriminatory cutoff test scores must measure the minimum qualifications necessary for successful job performance.

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EMPLOYMENT DISCRIMINATION - PA

Systematic Disparate Impact Discrimination - Defendant's Rebuttal: "Bottom Line" Defense Not Valid

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If a practice of an employer causes a disparate impact, the employer may not avoid liablity by later altering the results so that the "bottom line" results in an appropriate balance.

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EMPLOYMENT DISCRIMINATION - PA

Systematic Disparate Impact Discrimination - Alternate Employment Practices

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Title VII provides that if an employer meets the burden of proving that its practices are job related, the complaining party may still show that an alternative employment practice without an undesirable discriminatory effect would also serve the employer's insterest. However, the cost must be no more to the employer than the contested practice.

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EMPLOYMENT DISCRIMINATION - PA

Systematic Disparate Impact Discrimination - Title VII Exceptions

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Title VII provides protection for certain employment practices.

a) Professionally Developed Tests: An employer's tests must be (i) professionally developed; (ii) not designed, intended, or used to discriminate; and (iii) job related.

b)Bona Fide Seniority Systems: A bona fide seniority systems ("BFSS") allows for different compensation and terms and conditions of employment for different groups of employees, but the BFSS must be justified under business necessity and job-related exceptions, and there must be no alternative employment practices. If an employer provides a BFSS, the plaintiff may try to prove disparate impact by showing that the seniority system: (i) is facially discriminatory; (ii) has its genesis in discrimination; or (iii) is maintained or manipulated to perpetuate discrimination.

c) Bona Fide Merit and Piecework Systems: Quantity-and quality-based compensation is permitted.

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EMPLOYMENT DISCRIMINATION - PA

HARASSMENT:

Types of Harrassment Claims

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There are two types of harassment claims (i) quid pro quo, and (ii) hostile environment.

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EMPLOYMENT DISCRIMINATION - PA

HARASSMENT:

Quid Pro Quo

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Quid pro quo applies to sexual harassment only, when sexual conduct is a condition of tangible employment benefits.

The harasser must be a supervisor with the ability to carry out the threats.

There are no formal defenses; the employer simply denies the claim.

If the Plaintiff proves her claim, the employer is vicariously liable.

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EMPLOYMENT DISCRIMINATION - PA

HARASSMENT:

Hostile Work Environment: Plaintiff's Case

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The plaintiff must prove that the harassment:

1) was because of the plaintiff's protected status;

2) was unwelcome (in cases of sexual harassment);

3) was severe or pervasive;

4) unreasonably altered the condition of her employment so as to create a hostile work environment; and

5) the employer is liable.

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EMPLOYMENT DISCRIMINATION - PA

HARASSMENT

Hostile Work Environment: Employer's Liability - Created by Supervisor

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For hostile environments created by supervisors, the employer is vicariously liable, but the employer has a two-part affirmative defense. The employer will not be held liable if he can prove that: (i) he used reasonable care to prevent and promptly correct harassment; and (ii) the employee unreasonably failed to use reporting procedures provided by the employer.

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EMPLOYMENT DISCRIMINATION - PA

HARASSMENT

Hostile Work Environment: Employer's Liability - Created by a Co-Worker

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For hostile environment claims created by coworkers, the employer will be held liable under a negligence standard if the plaintiff can prove that: (i) the employer knew or should have known about the harassment, and (ii) the employer failed to take prompt, remedial action.

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EMPLOYMENT DISCRIMINATION - PA

RETALIATION

Types of Retaliation Claims

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Two types of retaliation claims: Opposition and participation

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EMPLOYMENT DISCRIMINATION - PA

RETALIATION: Opposition Conduct

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An opposition conduct claim includes behavior where the plaintiff is explicitly challenging, opposing, or questioning an employment practice of the employer, but the plaintiff need not have filed a formal charge. The plaintiff must demonstrate a reasonable, good faith belief that the conduct complained of is unlawful.

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EMPLOYMENT DISCRIMINATION - PA

RETALIATION: Participation Conduct

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A participation conduct claim involves behavior by the plaintiff within the formal complaint structure, either within the EEOC or a relevant state agency or within the employer's structure. There is almost absolute protection from discrimination based on participation in EEOC proceedings.

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EMPLOYMENT DISCRIMINATION - PA

RETALIATION: Plaintiff's Prima Facie Case

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The plaintiff must show that: (i) she was engaged in statutorily protected expression; (ii) the employer was aware of the conduct (iii)she suffered an adverse action (which need not be directly realted to her employment) and (iv) there was a causal connection between the statutorily protected expression and adverse action.

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EMPLOYMENT DISCRIMINATION - PA

RETALIATION

Defendant's Rebuttal

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Once the plaintiff has established a prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the adverse employment action. A decision to discipline an employee whose conduct is unreasonable, even though borne out of a legitimate protest, does not violate Title VII.

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EMPLOYMENT DISCRIMINATION - PA

RETALIATION

Pretext

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If the defendant carries his burden, the burden then shifts to the plaintiff to show that the defendant's articulated reason was pretextual for the defendant's actual discriminatory motive

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EMPLOYMENT DISCRIMINATION - PA

PROCEDURES FOR ENFORCING ANTIDISCRIMINATION LAWS

Private Enforcement: Proper Plaintiff

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Title VII allows suit to be brought by any "person aggrieved" by the discrimination. As long as the plaintiff has suffered some injury, and a charge covering the unlawful employment action has been filed with the EEOC, the plaintiff is a proper plaintiff.

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EMPLOYMENT DISCRIMINATION - PA

PROCEDURES FOR ENFORCING ANTIDISCRIMINATION LAWS

Private Enforcement: The Administrative Phase - Filing a Timely Charge

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A plaintiff must timely file a charge under oath with the EEOC. THe charge will be sufficient as long as it identifies the parties and describes generally the action or practices complained of.

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EMPLOYMENT DISCRIMINATION - PA

PROCEDURES FOR ENFORCING ANTIDISCRIMINATION LAWS

Private Enforcement: The Administrative Phase - Periods of Limitation Applicable to the Filing of Charges

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The charge must be filed with the EEOC within 180 days after the alleged unlawful employment practice occurred.

However, where a state or local antidiscrimination agency exists, the charge must be filed with the EEOC within 300 days for the alleged violation and must also be filed with the state agency.

IN PA: a plaintiff has 300 days to file a charge with the EEOC and also file the charge with Pennsylvania's state agency, the Pennsylvania Human Relations Commission, within 180 days of the alleged violation.

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EMPLOYMENT DISCRIMINATION - PA

PROCEDURES FOR ENFORCING ANTIDISCRIMINATION LAWS

Private Enforcement: The Administrative Phase - Continuing Violations and Tolling of the Filing Period

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A charge alleging a hostile work environment claim will not be time-barred as long as:

(i) all acts that constitute the claim are part of the same unlawful employment practice, and

(ii) at least one act falls within the time period.

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EMPLOYMENT DISCRIMINATION - PA

PROCEDURES FOR ENFORCING ANTIDISCRIMINATION LAWS

Private Enforcement: The Administrative Phase - Filing Suit

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Right to Sue: The charging party may (but need not) demand a suit letter from the EEOC once 180 days have passed since filing with the EEOC, unless the EEOC procedures are terminated earlier.

EEOC's Findings: If EEOC procedures reach a conclusion, the EEOC will either (i) find no reasonable cause and issue a notice of dismissal; or (ii) find reasonable cause, attempt conciliation, and, if that fails and the EEOC does not file suit itself, issue a right-to-sue letter.

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EMPLOYMENT DISCRIMINATION - PA

PROCEDURES FOR ENFORCING ANTIDISCRIMINATION LAWS

Federal Government Enforcement

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The EEOC may bring suit based on the discrimination charged after the completion of its internal processes.

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EMPLOYMENT DISCRIMINATION - PA

PROCEDURES FOR ENFORCING ANTIDISCRIMINATION LAWS

Suits Against Government Employers

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Title VII applies to state and local governments as well as a private employers, but because Eleventh Amendment issues, the ADEA and the ADA do not abrogate a state's sovereign immunity.

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EMPLOYMENT DISCRIMINATION - PA

REMEDIES

Legal Remedies: Compensatory Damages

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Compensatory damages, which are available under Title VII and the ADA for intentional discrimination, are awarded for future pecuniary losses and also for nonpecuniary losses, such as emotional pain, inconvenience, and mental distress (if the plaintiff suffered actual injury).

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EMPLOYMENT DISCRIMINATION - PA

REMEDIES

Legal Remedies: Punitive Damages

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Punitive Damages are available under Title VII and ADA and are limited to cases where the employer has engaged in intentional discrimination and has done so with malice or with reckless indifference.

An employer is not vicariously liable for discrimination by managerial agents unless:
1) liability would be appropriate (if the actor was in managerial capacity and acting within the scope of the actor's employment) and
(ii) the employer did not use good faith efforts to comply. A cap is placed on the recovery of compensatory and punitive damages combined, based on the number of employees.

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EMPLOYMENT DISCRIMINATION - PA

REMEDIES

Legal Remedies: Liquidated Damages

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The ADEA allows the recovery of liquidated damages in cases of willful violations (i.e. if the employer knew that his conduct was prohibited by the Act or showed reckless disregard as to whether his conduct was prohibited by the Act.) The EEOC or nonfederal discriminatee may recover:
(i) unpaid wages;
(ii) liquidated damages in an amount equal to the amount of unpaid wages recovered.

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EMPLOYMENT DISCRIMINATION - PA

REMEDIES

Equitable Relief: Reinstatement and Retroactive Seniority

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Common forms of compensatory equitable relief are awards of instatement or reinstatement and retroactive seniority.

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EMPLOYMENT DISCRIMINATION - PA

REMEDIES

Equitable Relief: Reinstatement and Retroactive Seniority - Seniority Relief

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Class-based seniority relief for identifiable victims of illegal hiring discrimination is a form of relief generally appropriate under Title VII. Employees injured by a violation of Title VII may be restored to the economic position in which they would have been if not for the discrimination.

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EMPLOYMENT DISCRIMINATION - PA

REMEDIES

Equitable Relief: Reinstatement and Retroactive Seniority - Retroactive Competitive Seniority

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When the employer has engaged in a pattern or practice of discrimination, the plaintiffs must prove that:
(i) they would have applied for the position, if not for the discrimination;
(ii) they should be treated as applicants;
(iii) they are presumptively entitled to relief.

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EMPLOYMENT DISCRIMINATION - PA

REMEDIES

Equitable Relief: Affirmative Action Relief

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Courts have required employers to take affirmative race-based steps that benefit an entire class. A court may, in appropriate circumstances, order preferential relief benefiting individuals who are not the actual victims of discrimination as a remedy for violations of Title VII.

Factors to be considered when determining whether race-conscious remedies:
(i) the necessity for the relief and the efficacy of alternative remedies;
(ii) the flexibility and duration of the relief;
(iii) the relationship of the numerical goals to the relevant labor market; and
(iv) the impact of the relief of the rights of third parties.

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EMPLOYMENT DISCRIMINATION - PA

REMEDIES

Backpay

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Backpay includes compensation for lost wages, raises, overtime compensation, bonuses, vacation pay, and retirement benefits.

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EMPLOYMENT DISCRIMINATION - PA

REMEDIES

Backpay: The Backpay Period

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The beginning date is normally the date the discriminatee first lost wages due to the discrimination but is limited to the two years before the filing of a charge with the EEOC. The backpay period ends on the date of the judgment but can end sooner if: the plaintiff would have been terminated, the plaintiff rejects an offer of employment, or the plaintiff resigns from her position.

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EMPLOYMENT DISCRIMINATION - PA

REMEDIES

Backpay: Duty to Mitigate Damages

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Title VII and the ADEA require the backpay award to be reduced by amounts that were earned and those that could have been earned with reasonable diligence. The plaintiff must prove her damages by measuring the difference between her actual earnings and those that she would have earned absent the discrimination. The Defendant must show that the emount the Plaintiff could have earned with reasonable diligence.

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EMPLOYMENT DISCRIMINATION - PA

REMEDIES

Front pay

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A front-pay award compensates economic losses that will occur after the court's judgment up to the date of reinstatement or instatement if such relief has been ordered. If reinstatement is not ordered, front pay may be awarded as a sustitute. Front-pay awards must be reduced by the amount plaintiff could earn using reasonable mitigation efforts.

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EMPLOYMENT DISCRIMINATION - PA

ATTORNEYS' FEES: Statutes

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Each statute provides for the recovery of attorneys' fees and costs to the prevailing party. Under Title VII, the court has discretion to award the prevailing party reasonable attorneys' fees (including expert fees).

The ADEA requires the court to award attorneys' fees and costs to a prevailing nonfederal discriminatee but does not authorize the court to make such an award to a prevailing employer.

The ADA fee provisions generally follow the Title VII pattern, except that the ADA permits the recovery of "litigation expenses" rather than "expert fees" and also permits the EEOC, as well as a court, to make a fee award.

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ATTORNEYS' FEES: Prevailing Party

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To qualify as the prevailing party, the party must be awarded some relief by the court (as opposed to simply spurring the defendant to change).

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EMPLOYMENT DISCRIMINATION - PA

ATTORNEYS' FEES: Fees to Defendant

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A court may exercise its discretion and award attorneys' fees to a prevailing defendant if it finds that the plaintiff's action was frivolous, unreasonable, or without foundation, even if it was not brought in bad faith.