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62 Cards in this Set
- Front
- Back
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What are the SCOTUS factors for who is an employee? |
(i) whether organization can hire and/or fire the individual or set the rules and regulations that govern his work. (ii) whether to what extent the organization supervices the individual's work (iii) whether the individual reports to someone higher in the organization (iv) whether and to what extent the individual is able to influence the organization (v) whether the individual shares in the profits, losses and liabilities (vi) whether the parties intend the individual to be an employee. |
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What is unlawful under Title VII? |
unlawful for an employer to fail or refuse to hire, to fire, or to discriminate on race, color, religion, sex or national origin
unlawful to classify, segregate, limit employees based on same factors. |
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Who are Ps in Title VII? 5. |
Race, Color, Sex Religion National Origin |
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Who are Ds in Title VII? |
Employers w/15+ employees Labor unions employment Agencies |
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Whor are exceptions to Title VII of Civil rights act of 1964? |
Religious organizations can discriminate based on religion
Private membership clubs
Indian tribes |
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What protected by ADEA? |
unlawful for an employer to fail or refuse to hire, to fire or to riscriminate because of age.
Unlawful to classify, segregate, limit employees based on age. |
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Who are Ps in ADEA? |
over 40 years old.
must allege a claime that P was discriminated against in favor of someone younger
Cant argue you were discriminated against in favor of someone older
Can argue that the person you were discriminated against in favor of is also over 40, if younger than you. |
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Who are Ds under ADEA? |
Employers with 20+ employees Labor unions employment agencies |
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What are exceptions to ADEA? |
States retain 11 amendment immunity EOC can still sue, just not an individual. |
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What is covered by ADA? |
no discrimination against a qualified individual on the basis of disability
prohibited action also includes failing to make reasonable accomodations, unless employer can demonstrate that the accommodation would cause undue hardship |
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Who are Ps in ADA? |
Qualified individuals discriminated against on the basis of disability.
Three ways to be w/in protected class: (i) actual present disability, or (ii) record of impairment, or (iii) regarded as having a physical/mental impairment
Disability: (i) mental or physical impairment that (ii) substantially limits (iii) a major life activity
Qualified individual: (i) individual w/a disability (ii) who w/or w/o reasonable accomodations (iii) can perform the essential functions of the job |
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Who are Ds in ADA? |
Employers w/15 employees |
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Who exempt from ADA? |
States retain 11th am immunity. |
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How to file/enforce a claim? What are 5 major steps and their substeps? |
(1) file a charge w/Pennsylvania Human Relations Commission (a)P must file w/in 180 days of alleged violation (b) under oath (c) filing = charge if it may reasonably be contrued as a request for the agency to take action to protect the employee's rights. Once in court, youre limited to claims asserted in charge.
(2) File a charge with EEOC (a) EEOC will not accept charge until 60 days after PHRC (b) P must file by earlier of (i) 300 days of the allegation violation, or (ii) 30 days after receiving notice that PHRC has terminated proceedings. (c) P may cross-file with both agencies
(3) How decide when the practice took place (a) Discrete acts: hiring, firing, transfer, demotion, focus on time of act, not time of concequences, notice of decision rule = notice to the employee of employer's decision starts clock. (b) Paychecks - each new paycheck awarding discriminatory pay restarts the clock (c) hostile enviornments - charge is not barred so long as the acts which constitute the claim are part of the same unlawful practice and at least one fact falls w/in the time period.
(4) Obtain a right-to-sue letter (a) can demand letter once 180 days after filing charge have passed (b) but can wait after 180 (c) charging party may permit the agency to process through conclusion where they may find: no reasonable cause to believe and dismiss, or reasonable cause, attempt conciliation, and if that failes, agency does not file suit itself or will issue the right-to-sue letter. A P under ADEA may file without a right to sue letter.
(5) File in state or federal court: charging party has 90 days of receipt of notice of dismisall of the suit letter. |
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What are 5 types of claims? |
(i) individual disparate treatment (ii) systemative disparate treatement (iii) disparate impact (iv) harrasment (v) retaliation |
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What is first step to prove Single-Motive case for Individual Disparate Treatment? |
McDonnel Douglas Test - burden shifting
Prima Facie Case: P must prove by preponderance of the evidence: (i) membership in a protected class (ii) qualified for the position (met min reqs) (iii) applied for an open position (iv) adverse employment action (v) position remained open or is filled w/someone outside of protected class
Presumption fo discrimination created. If employer remains silent, P wins. |
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What is second step to prove Single-Motice case for Individual Disparate Treatment? |
Burden shifts to employer. (i) Employer must articulare a legitimate non-discriminatory reason for the employment action. (ii) Burden of production is on employer. |
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What is third step to prove Single-Motice case for Individual Disparate Treatment? |
Burden shift to P. (i) P must prove that the reason offered by D is not the real reason. (ii) P must prove that the real reason was discrimination, and that discrimination against protected clas was a determinative factor. |
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How to prove a mixed-motice ase for Individual Disparate Treatment? |
Employer action was taken due to both permissible and impermissible motives. Lower standard for causation.
Title VII: Unlawful employment action is established when P shows that an impermissible reason was a motivating factor in the decision. Same decision defense: D can try to demonstrate by a preponderance that it would have made the same decision absent the impermissible reason. If D carries, the court may grant declaratory judgment, injunctive relieve, attorneys fees costs but not damages, reinstatement, hiring or promotion. P does not need to have direct evidence to use this framework.
ADA: Courts generally require P to have direct evidence that an impermissible reason was motivating factor D may avoid liability by proving by a preponderance that it would have made the same decision absent permissible reason. Dame decision defense avoids liability under ADA, only limits remedies under Title VII
ADEA: Only single motice - there is no mixed motive framework available. Age discrimination must be the but for cause.
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What are two types of Systemic Disparate Treatment? |
Present where an employer discriminates against an entire class. P must show intent: formal policy or pattern/practice. |
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For systemic disparate treatment, how to prove formal policy of discrimination? |
P proves D has a facially discriminatory policy. The discrimination must be in the policy. |
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What are the 3 defense to fomal policy of discrimination? |
(i) Bona fide occupational qualification: D must prove: (a) BFQQ is reasonably necessary to the normal operation of the particular business; and (b) religion/sex/age/national origin is a proxy for the qualification, either by showing: there is a reasonable cause to believe all or substantially all of the persons in the class are unable to perform safely and efficiently duties of the job, or some employees in the class possess a trait precluding safe/efficient performance and it is practically impossible for the employer to deal a/the class on an individual basis
Race and cstomer preference are never BFQQ, but can be taken into account.
(ii) Bona fide seniority system, cannot require mandatory retirement bc of age
(iii) bona fide employee benefit plan |
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For systemic disparate treatment, how to prove patter or practice of discrimination? |
(i) statistics - compare stats of employer vs others - same geography and skill (ii) anecdotal evidence - one person's experience in company (iii) historical evidence - evidence about the company's historical practices. |
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How D rebut pattern or practice distrimination claim? |
(i) challenge the factual basis (ii) challenge the inference in statistics (iii) assert BFOQ - but msut be related to the essence or central mission of the employer's business (iv) avoidance of disparate impact liability as a defnes: an employer may engage disparate impact to avoid disparate impact liability only when it has a strong basis in evidence to believe it will be subject to disparate impact liability if it fails to take the action. |
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When is affirmative action permissive? |
Weber Test: (i) Lawful under Title VII. (ii) Private, voluntary, race-conscious affirmitive action plans must: (a) aim to remedy a manifest imbalance, (b) in traditionally segregated job categories, and (c) cannot unduly trammel the rights of disfavored groups.
P must prove elements of a PF case of systemic disparate impact d must prove LNDR of voluntary AA plan P must prove that the plan is invalidated by failure to meet Weber Test. |
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What is first step to prove Systemic Disparate Impact? |
An employer's facially neutral policies, regardless of intent, adversely affect a protected class more than others, and cannot be adequately justified. No need to show intent
Prima Facie Case: (i) membership in a protected class (ii) identify a particular employment practice - bottom line exception: if P can't tell which practice causes the impact b/c employer does not keep such records, P can use the bottom line to prove PF case (iii) causation - need link between practice and impact (iv) disproportionate impact - no statutory def. EEOC 4/5s rule: if protected group pass rate is less than 80% of the non-protected remainder's pass rate, this is evidence of adverse impact. may challenge when adopted and when implemented. |
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What is second step to prove Systemic Disparate Impact? |
Ds Rebuttal: (i) challenge Ps PF case (ii) business necessity and job relatedness (iii) Section 703(h) exceptions: (a) professionally developed tests (wonderlic), (b) bona fide seniority systems, (c) bona fide merit and piecework systems (quantity and quality based - sales target) (iv) in an ADEA claim, employer may defend age claim by proving the decision was based on factors other than age. |
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What is third step to prove Systemic Disparate Impact? |
Ps response (i) P may show there is an alternative employment practice which achieves the employer's goals but does not have discriminatory impact serves same purpose and is not discriminatory and is reasonabel (cost) to expect the employer to use. |
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What is harrasment? |
This is basic prohibition on discrimination. Available under all three statutes. |
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What is quid pro quo? |
This is only sex-based and can only be accomplished by a supervisor. Threat must be carried out. no formal defenses.
If P proves claim, employer is vicariously liable. sex for employment benefit. |
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How is hostile work environment proven by P? |
P must prove: (i) membership in a protected class - no sex orientation (ii) harassment because of membership - same sex harrasment is actionable. (iii) behavior was unwelcome (applies only to sex) (iv) behavior was severe and pervasive - consider severity, frequency, etc. (v) employer liability: depends on who created (a) supervisor - 1-employer is vicariously, not liable if can prove employer used reasonable care to prvent and promptly correct harasement and employee unreasonable failed to use the reporting procedures. (b) co-worker - employer held liable under negligence if P can prove employer knew or should have known and employer failed to take prompt remedial action.
supervisor: empowered to take significant action against V, including hire, fire, promote, reassign. |
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What are the 4 steps to prove retaliation? |
(1) P was engaged in statutorily protected expression. P is explicitly challenging, opposing or questioning an employment practice or Ps behavior is w/in the formal complaint structure.
(2) Employer was aware of the conduct
(3) P suffered an adverse employment action
(4) Causal connection between the protected expression and hte adverse employment action.
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What are Ds rebuttals to retaliation? |
Once P has established PF case, D could show P was engaged in unreasonable and unlawful opposition, disloyalty to the company is not enough. |
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How is pregnancy treated for Title VII? |
Pregnancy Discrimination Act of 1978: Women affected by pregnancy, child birth or related conditions shall be treated the same.
Pregnancy can't be treated less favorably than other medical conditions. Pregnancy is not a disability under ADA. |
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What is grooming and dress code under title VII? |
Sex specific grooming and ress code not per se violation.
Cannot impose an unequal burden. Okay for women to have long hair men short. |
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What is sexual orientation under Title VII? |
Not protected, but cannot discriminate based on steryotypes. not fire because not masculine. |
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How is religion treated under Title VII? |
Duty to accommodate unless undue hardship.
Need to show employer aware of religious beliefs.
Does not apply to a religious organization.
Ministrial exception: Court will not consider other charges of discrimination if the employment deals with the religous core of the organization.
Religius curriculm exemption. |
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What are statutory defenses under ADEA? |
good cause and reasonable factors other than age.
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What is bona fide executive exemption under ADEA? |
Bona fide executives may be manditorily retired at 65. |
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What is Public Safety Officer exemption? |
PSO may be subject to mandatory retirement or not hired b/c of their age.
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What is bona fide employee benefit plans under ADEA? |
Generally its not Okay to discriminate, but okay to spend the same amount of money on everyone's benefit plan, even if it means older workers get less comprehensive benefits. |
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Early retirement incentive plans ok by ADEA. It is not a violation of ADEA for collective bargaining to require union members to arbitrate ADEA claims. |
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What is definition of disability? |
Physical or mental impairment that substantially limits one or more major life activities of an individual. |
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What is a physical or mental impairment? |
Physiological disorder or condition, Cosmetic disfigurement Anatomical loss Mental or pshycj disorder Does not include weight, height, eye color, common personality traits. |
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What are major life activities? |
seeing, hearing, speaking, breathing, lifting, bending, standing, communicating, caring for oenself, performing manual tasks, and working and major bodily functions. |
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What is impairment substantially limits? |
EEOC regulations: an impairment that substantially limits the ability to perform a major life activity compared to most peple in the general population.
construe broadly.
An impairment which is episodic or in remission is a disability if it would substantially limit a major life activity when active.
Must consider the limitation w/o corrective measures, except for eye glasses and contacts. |
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What is regarded as disabled? |
Qualifies if P has been subjeted to a prohibited action b/c of an actual or perceived impairment whether or not the impairment substantiall limits of is perceived to limit a major life actinit. |
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What is essential job functions? |
Employer's job description is accorded deference.
Regular and timely attendance at work is an essential job function. |
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What is reasonable accommodation? |
Employe must be able to perform the essential functions once the employer has provided a reasonable accomdation. cost is a factor re: reasonableness. relatocation to open position is factor |
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What are defenses to ADA? |
LNDR Unde hardship - significant difficulty or expense. Direct threat - to others. Job-related and consistent w/business necessity - |
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How ADA treat alcohol and drug users? |
current drug users are excluded. But ADA does protect alcoholics and drug addicts from discrimination on the basis of their addiction. |
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How medical examinaction and inquiries handled by ADA? |
(i) employer may inquire into an applicant's ability to do the job and may condition offer on resulsts of medical exam. (ii) but only if all entering employees are subject to a medical exam and the results are condidential (iii) drug tests are not medical exams (iv) can't require a medical exam of an employee unless its job related and consistent w/business necessity. results must be confidential. |
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What are some limitations on remedies? |
after-acquired evidence: no front pay no reinstatement (discovered legitimate reason for firing after discrimination.
same decision defense: no damages Limited to claims of intentiaonal discrimination |
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What are the caps under Title VII? |
15-100 employees: $50K 101-200: $100K 201-500 - $200K over 501$300K |
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What are compensatory damages and when awarded? |
awarded for future pecuniary losses, emotional pain, suffering inconvenience, mental anguish, loss of enjoyment of life and other non-pecuniary losses |
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When are punitive damages awarded? |
limited to cases in which the employer has engaged in intentional discrimination and has done so with malice or reckless indifference to the federally protected rights of P. |
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When Liquidated damages given? |
only the ADEA allows. P may recover unpaid wages and LD in an amount = to the amount of unpaid wages. LD are only awarded in cases of willful violations. |
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When can court award reinstament retroactive seniority. |
they can |
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AA if class-wide, race conscious remedy. |
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back pay not subject to cap; however 2 yr limitation in calculation. can include wages would have received but for discrimination. reduced by amounts earned ro could have earned with reasonable diligence. |
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Front pay not subject to cap. |
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Attorney fees not subject to cap. prevailing party can receive. |
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