Klmplymuent Pigullitistion Fugullo Term

Front 1

aaEMPLOYMENT DISCRIMINATION - PA

Title VII - Potential Plaintiffs

Back 1

aaCurrent 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

Front 2

bbEMPLOYMENT DISCRIMINATION - PA

Title VII - Defendants

Back 2

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

An employer's agents and empl

oyment agencies and labor organ

izations are also prohibited from discrimi

nating.

Indian Tribes and bona fide private membership clubs are exempt.

Front 3

ccEMPLOYMENT DISCRIMIN

ATION - PA

Title VII - Employee Defined
Factors to consider:

Back 3

cc1) Whether the organ

ization can hire or fire the indivi

dual or set the rules and reg

ulations of the individuals work;

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

3) Whether the indi vidual 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.

Front 4

EMPLOYMENT DISCRIMINATION - PA

Title VII - Specific issues regarding religion

Back 4

An employer must accomodate the religious pract

ices and observances of his employees or prospective employe es unless the employer is unable to provide reaso

nable accomm

odation with undue hardship on the conduct of his business.

Front 5

ddEMPLOYMENT DISCRIMINATION - PA

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

Back 5

dd1) imposes more than a de minimis cost on the employer, or

2) requires the employer to violate federal law.

Front 6

eeEMPLOYMENT DISCRIMINATION - PA

Title VII - Prima Facie Case for Religious Discrimination

Back 6

eePlaintiff 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 discip lined for failing to comply with the conflicting requirement.

Front 7

ffEMPLOYMENT DISCRIMINATION - PA

Title VII - Employer's Defenses to Religious Discrimination

Back 7

ffStatutory exemptions include:

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

2) a religious educa

tional insti

tution if its curriculum is dire cted toward the prop

agation 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.

Front 8

ggEMPLOYMENT DISCRIMINATION - PA

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

Back 8

ggEmployees who are at least 40 years of age who allege discrimina tion (in favor of someone who is younger)

Front 9

hhEMPLOYMENT DISCRIMINATION - PA

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

Back 9

hhEmploy er who has at least 20 empl

oyees who work at least 20 weeks during a calendar year.

Front 10

iiEMPLOYMENT DISCRIMINATION - PA

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

Back 10

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

ii2) Bona fide executive or high policymaking position for the two year period imme diately 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.

Front 11

jjEMPLOYMENT DISCRIMINATION - PA

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

Back 11

jjBenefits provided pursuant to a bona fide employee benefit plan are protected under the ADEA. However, lower ben efits 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.

Front 12

kkEMPLOYMENT DISCRIMINATION - PA

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

Back 12

kkUnder very specific cond

itions, the ADEA allows a benefit plan that is voluntary early retirement incentive plan.

Front 13

LLEMPLOYMENT DISCRIMINATION - PA

The Age Discrimination in Employ

ment Act of 1967 (ADEA) - Older Workers Benefit Protection Act

Back 13

LLAuthorizes 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.

Front 14

mmEMPLOYMENT DISCRIM INATION - PA

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

Back 14

mmAn Employer must not discriminate against a qualified individual; com

pensation; job training; or other terms con

ditions, and privileges of employment.

Employer must provide reasonable accom

modat ions to known physical or mental limitations of an otherwise qual

ified individual with a disability unless the employer can demonstrate that the accommodation would cause undue hardship.

Front 15

nnEMPLOYMENT DISCRIMINATION - PA

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

Back 15

nnA plaintiff must be a qualified indi

vidual with a disability.

Front 16

EMPLOYMENT DISCRIMINATION - PA

The Americans with Disab

ilities Act of 1990 (ADA) - Meaning of Disability

Back 16

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

Front 17

EMPLOY MENT DISCRIMI NATION - PA

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

Back 17

A physical or mental impa

irment that substantially limits a major life activity of an individual.

Front 18

ppEMPLOYMENT DISCRIMINATION - PA

The Americans with Disabil

ities Act of 1990 (ADA) - Three Steps to determine of there is actual disibility:

Back 18

pp1) 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 impair ment substa

ntially limit the major life activity? F actors considered include: the nature and severity of the impair ment, the duration of the impairment, and the perma

nent or long-term impact of the impairment.

Front 19

ooEMPLOYMENT DISCRIMINATION - PA

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

Back 19

ooA past record of impair

ment that substa

ntially limits a major life activity places an individual within the protected class even if the individual is not currently impaired.

Front 20

qqEMPLOYMENT DISCRIMINATION - PA

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

Back 20

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

1) an employer mistakenly believes that a person has a physical impa

irment 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.

Front 21

rrEMPLOYMENT DISCRIMINATION - PA

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

Back 21

rrA qualified individual with a disability is one who has a disability but who can perform the essential job functions with or without reasonable accomm

odation. Providing reasonable accom modation may include altering employee facilities and equ

ipment, adjusting work sched ules, modifying examinations, and providing readers and interpreters The cost of the accomm

odations cannot be dispro

portionate to the benefit.

Front 22

ssEMPLOYMENT DISCRIMINATION - PA

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

Back 22

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

Front 23

ttEMPLOYMENT DISCRIMINATION - PA

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

Back 23

ttPlaintiff must show that the employer:

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

2) Used standards, criteria, or methods of admini

stration that have the effect of discri

mination on the basis of the diability (disparate impact) or;

3) Failed to provide reasonable accommodation.

Front 24

uuEMPLOYMENT DISCRIMINATION - PA

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

Back 24

uuThe 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 perf

ormance cannot be accomplished by reasonable accomm

odation.

Front 25

vvEMPLOYMENT DISCRIMINATION - PA

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

Back 25

vvCurrent users of illegal drugs are excluded from coverage. A safe harbor provision provides an exception to the exclusion for individuals who are rehabili

ated and have been drug-free for a significant period of time.

Front 26

wwEMPLOYMENT DISCRI

MINATION - PA

The Ame

icans with Disabi

ities Act of 1990 (ADA)- Specific Issues Under the ADA - Medical Examinations and Inquires

Back 26

wwAn employer may condition an offer of employ

ment on the results of a medical exam

ination only if all entering employees are subject to the medical examin

ation and the results are confi

dential. Medical exam

inations given after an offer of em

ployment 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 exami

nations or inquires unless they are job related and consistent with business necessity.

Front 27

xxEMPLOYMENT DISCRIMINATION - PA

The Ameri

cans with Disabil

ities Act of 1990 (ADA)- Specific Issues Under the ADA - Protected Relationships

Back 27

xxThe ADA prohi

bits an employer from discrim

inating against a qua

lified indiv

idual because of the known disa

bility of another individual with whom the qua

lified individual is known to have a relatio

nship or association. To bring an action, the plain

tiff must show that: the third party is an individual with a disabili ty, the employer was aware of the third party's disability, and the employee was fired because of the realtionship.

Front 28

yyEMPLOYMENT DISCRI

MINATION - PA

Types of Claims:

Back 28

yyClaims may be catego

rized as either trea

tment or impact claims and as either individual or group claims.

Front 29

zzEMPLOYMENT DISCRIMINATION - PA

Treatment Claims

Back 29

zzRequire a showing of the intent to discri

minate on the basis of a prohi

bited 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.

Front 30

AAEMPLOYMENT DISCRIMINATION - PA

Imact Claims

Back 30

AAFocus on the effect of an adverse employment action; intent to discri

minate is not required. Unless otherwise noted, these claims apply to all three statutes.

Front 31

BBEMPLOYMENT DISCRIMINATION - PA

Individual Disparate Treatment

Back 31

BBExists when an em

ployer treats an indi

vidual differently from others because of a prohibited characteristic.

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

Front 32

CCEMPLOYMENT DISCRIMINATION - PA

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

Back 32

CCPlaintiff must prove by a perponde rance 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)

Front 33

DDEMPLOYMENT DISCRIMINATION - PA

Individual Disparate Treatment - Proving a case through Circumstantial Evidence

Effect of Prima Facie Case

Back 33

DDOnce the prima facie case is established, a presu

mption of discri

mination is created. If the employer remains silent, the plaintiff wins.

Front 34

EEEMPLOYMENT DISCRIMINATION - PA

Individual Disparate Treatment - Proving a case through Circumstantial Evidence

Employer's Burden of Production

Back 34

EEOnce the Plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, non-discrimi natory reason (LNDR)for the employ ment 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.

Front 35

FFEMPLOYMENT DISCRIMINATION - PA

Individual Dispar

ate Treatment - Proving a case through Circums

tantial Evidence

Burden shifts to Plaintiff

Back 35

FFOnce the employer articulates a legitimate non-discrim inatory reasona, the burden shifts to the plaintiff to prove pretext. The plaintiff must prove that the legitim

ate non-discri

minatory reason offered by the defendant is not the real reason behind the emp

loyment action, that the real reason was discri mination, and that the discrim

ination was the determ

inative factor in the decision.

Front 36

GGEMPLOYMENT DISCRIMINATION - PA

Individual Disparate Treatment - Proving a case through Direct Evidence

Back 36

GGDirect evidence is evidence, which if believed, proves a fact without inference or presum

ption. Only the most blatant statements or actions that indicate discrimi

nation on the basis of an impermi ssible factor constitute direct evidence of discrimination.

Front 37

HHEMPLOYMENT DISCRIMINATION - PA

Individual Disparate Treatment - Mixed Motive Case

Back 37

HHThe mixed motive case is a case wherein an employ ment action was taken because of both permi

ssible and imperm

issible motives.

Front 38

slEMPLOYMENT DISCRIMINATION - PA

Individual Disparate Treatm

ent - Mixed Motive Case: Burden Shifting Scheme

Back 38

sl1) 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 leg

itimate, non-disc

riminatory reason;

3) The plaintiff shows that the imp

ermissible fact was a motivating factor in the emp

loyment decision, and lialibity attaches;

4) The def

endant proves that he would have reached the same dec

ision in the absence of the impermissible factor.

Front 39

JJEMPLOYMENT DISCRIMINATION - PA

Individual Disparate Trea

tment - Mixed Motive Case: Limited remedies

Back 39

JJIf the Plaintiff carries her burden, the court may grant declaratory relief, inju

nctive relief, attorney's fees and costs but may not award damages or an order of reinstat

ement, hiring, promotion or payment.

Front 40

KKEMPLOYMENT DISCRIMINATION - PA

Systematic Disparate Treatment Discrimination

Back 40

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

This can be demonstrated by policies of discrimin

ation or by patterns and practices of discri

ination.

Front 41

LLEMPLOYMENT DISCRIMINATION - PA

Systematic Disparate Treatment Discrimination - Plaintiff's Proof

Back 41

LLThe Plaintiff must prove that the employer has a facially discrimi

natory policy that allows or mandates adverse empl

oyment actions on the basis of unlawful characteristics.

Front 42

MMEMPLOYMENT DISCRIMINATION - PA

Systematic Disp

arate Treatment Disc

rimination - Defendant's Statutory Defenses

Back 42

MMOnce the plaintiff proves that there is a discrimi

natory policy, the defendant can only escape liabilty with a stat

utory defense.

Front 43

NNEMPLOYMENT DISCRIMINATION - PA

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

Back 43

NNThe 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.

Front 44

OOEMPLOYMENT DISCRIMINATION - PA

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

Back 44

OOIt is not unlawful for an employer to apply different standards of com

pensation pursuant to a bona fide employ

ment system if the system is based on the length of service and does not inten

tionally discr

iminate 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.

Front 45

dickEMPLOYMENT DISCRIMINATION - PA

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

Back 45

dickIf there is no direct evidence, the plaintiff may prove her case through circum

stantial evidence. The plai

ntiff 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.

Front 46

PPEMPLOYMENT DISCRIMINATION - PA

Systematic Disparate Treatment Discri

mination - Patterns and Practices of Discrimi

nation: Defenant's Rebuttal

Back 46

PPIn 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 nondis

criminatory reasons to explain the statistical picture and rebut the showing of intent to discriminate.

Front 47

suckerEM

PLOYMENT DISCRIMI

NATION - PA

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

Back 47

suckerVol

untary affirm

ative action is lawful under Title VII. To be valid, voluntary race -conscious affirm

ative action plans:

1) must aim to remedy a manifest imba

lance,

2) in traditio

nally segregated job categories, and

3) cannot unduly trammel the rights of disfavored groups.

Front 48

chuEMPLOYMENT DISCRIMINATION - PA

Systematic Disp

arate Impact Discrimination

Back 48

chuSyste matic disparate impact discri mination 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 dispro

portionately impacts a protec

ted class.

Front 49

QQEMPLOYMENT DISCRIMINATION - PA

Systematic Disparate Impact Discrimination - Plaintiff's Prima Facie Case

Back 49

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

Front 50

RREMPLOY

MENT DISCRIM

INATION - PA

Syste

atic Dispar

ate Impact Discr

imination - Plaintiff's Proof: The "Bottom Line" exception

Back 50

RRThe burden is on the plaintiff to identify the part

icular employm

ent practice that causes a dispa

rate 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.

Front 51

SSEMPLOYMENT DISCRIMINATION - PA

System atic Dispa

rate Impact Discri mination - Plaintiff's Proof: Amount of Impact and EEOC's "Four-Fifths Rule"

Back 51

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

Front 52

TTEMPLOYMENT DISCRIMINATION - PA

Syste

matic Dis

parate Impact Discrimi

nation - Defendant's Rebuttal: Employer's Practice Does Not Cause Impact

Back 52

TTIf the plaintiff establishes disparate imp

act by national data or with the exp

erience of other employers, the empl

oyer may assert an affirmative defense that his own use of the practice does not have a disparate impact.

Front 53

reckEMP LOYMENT DISCRIMI

NATION - PA

Syste

matic Dispa

rate Impact Discrimina tion - Defe

ndant's Rebu

ttal: Business Nec

essity and Job Relatedness

Back 53

reckThe employer must demon strate that the challenged practice is job related for the position in question and consistent with business necessity. Discri mina

tory cutoff test scores must measure the minimum qualificat

ions necessary for succe

ssful job perfo

mance.

Front 54

spolatiny om---EMPL YMENT DISCRIMI

NATION - PA

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

Back 54

spolatiny om--If a practice of an employer causes a disparate impact, the emp

loyer may not avoid liablity by later altering the results so that the "bottom line" results in an approp

riate balance.

Front 55

UUEMPLOYMENT DISCRIMINATION - PA

Systematic Disp

arate Impact Discrim

ination - Alternate Emplo

yment Practices

Back 55

UUTitle VII provides that if an emp

loyer meets the burden of proving that its pract

ices are job related, the com

plaining party may still show that an alternative emplo

yment practice without an unde

sirable discrim

inatory effect would also serve the em

ployer's insterest. Howe

ver, the cost must be no more to the emp

loyer than the contested practice.

Front 56

VVEMPLOYMENT DISCRIMI

NATION - PA

Syste

matic Dispar

ate Impact Discri

mination - Title VII Exceptions

Back 56

VVTitle 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 discrim

inate; 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.

Front 57

EMPLOYMENT DISCRIMINATION - PA

HARASSMENT:

Types of Harrass

ment Claims

Back 57

There are two types of harass ment claims (i) quid pro quo, and (ii) hostile envir

onment.

Front 58

WWSEMPLOY MENT DISC

RIMINATION - PA

HARASSMENT:

Quid Pro Quo

Back 58

WWQuid pro quo applies to sexual harassment only, when sexual conduct is a condition of tangible emplo yment benefits.

The harasser must be a superv

isor with the ability to carry out the threats.

There are no formal defe

nses; the employer simply denies the claim.

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

Front 59

EMPLOY

MENT DISCR

IMINATION - PA

HARASSMENT:

Hostile Work Envir

onment: Plaintiff's Case

Back 59

The plaintiff must prove that the har

assment:

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

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

3) was severe or pervasive;

4) unreas

onably altered the condition of her employ

ment so as to create a hostile work enviro

nment; and

5) the employer is liable.

Front 60

XXEMPLOYMENT DISCRIMINATION - PA

HARASSMENT

Hostile Work Enviro

nment: Employer's Liability - Created by Supervisor

Back 60

XXFor hostile envi

ronments created by sup

ervisors, the empl

oyer is vicariously liable, but the employer has a two-

part affirmative defense. The emplo yer will not be held liable if he can prove that: (i) he used reasonable care to prevent and promptly correct haras

sment; and (ii) the employee unreaso

nably failed to use reporting procedures provided by the employer.

Front 61

ifnEMPLOYMENT DISCRIMINATION - PA

HARASSMENT

Hostile Work Environ

ment: Employer's Liability - Created by a Co-Worker

Back 61

ifnFor hostile envi

ronment claims created by coworkers, the employer will be held liable under a neglig

ence standard if the plaintiff can prove that: (i) the employer knew or should have known about the harass

ment, and (ii) the employer failed to take prompt, remedial action.

Front 62

YYEMPLOYMENT DISCRIMINATION - PA

RETALIATION

Types of Retaliation Claims

Back 62

YYTwo types of retal

iation claims: Opposi

tion and partic

ipation

Front 63

ZZEMPLOYMENT DISCRIMINATION - PA

RETALIATION: Opposition Conduct

Back 63

ZZAn opposition conduct claim includes behavior where the plaintiff is explicitly challenging, opp osing, or questioning an employment practice of the employer, but the plaintiff need not have filed a formal charge. The plaintiff must demo nstrate a reasonable, good faith belief that the conduct comp

lained of is unlawful.

Front 64

ceve EMPLOYMENT DISCRI

MINATION - PA

RETALIATION: Partici

pation Conduct

Back 64

ceve A participation conduct claim involves behavior by the plaintiff within the formal comp

laint structure, either within the EEOC or a relevant state agency or within the employer's structure. There is almost abso

lute protection from discriminati on based on participation in EEOC proceedings.

Front 65

aaaaEMPLO MENT DISCRIMINATION - PA

RETALIATI

ON: Plaintiff's Prima Facie Case

Back 65

aaaaThe plaintiff must show that: (i) she was engaged in statut

orily protected expression; (ii) the empl

oyer was aware of the conduct (iii)she suffered an adverse action (which need not be directly realted to her emplo yment) and (iv) there was a causal connection between the statutorily protected expr

ession and adverse action.

Front 66

bbbbEM

PLOYMENT DISCRI

MINATION - PA

RETALIATION

Defendant's Rebuttal

Back 66

bbbbO

nce the plain

tiff has estab

lished a prima facie case, the burden shifts to the defe

ndant to articulate some leg

itimate, nondiscrim

inatory reason for the adverse employment action. A decision to discipline an employee whose conduct is unrea

sonable, even though borne out of a legitimate protest, does not violate Title VII.

Front 67

ccccEMPL

OYMENT DISCRIMIN

ATION - PA

RETALIATION

Pretext

Back 67

ccccIf the defendant carries his burden, the burden th dant's articulated reason was pretextual for the def

endant's actual discri

minatory motive

Front 68

ddddEMPLOYMENT DISCRIMINATION - PA

PROCEDURES FOR ENFORCING ANTIDISCRIMINATION LAWS

Private Enforcement: Proper Plaintiff

Back 68

ddddTitle 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 unlaw ful employment action has been filed with the EEOC, the plaintiff is a proper plaintiff.

Front 69

11EMPLO

YMENT DISCRIMINA

TION - PA

PROCEDURES FOR ENFORCING ANTIDISCRIMINATION LAWS

Private Enforcement: The Administrative Phase - Filing a Timely Charge

Back 69

11A plaintiff must timely file a charge under oath with the EEOC. THe charge will be sufficient as long as it identi fies the parties and describes generally the action or pra

ctices complained of.

Front 70

22EMPLOYMENT DISCRIMIN ATION - PA

PROCEDURES FOR ENFORCING ANTIDISCRIM INATION LAWS

Private Enfor cement: The Adm inistrative Phase - Periods of Limitation Applicable to the Filing of Charges

Back 70

22The charge must be filed with the EEOC within 180 days after the alleged unlawful employment pra ctice occurred.

However, where a state or local antid

iscrimina tion 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.

Front 71

33EMPLOYMENT DISCRIM

INATION - PA

PROCEDURES FOR ENFOR

CING ANTIDISCR

IMINATION LAWS

Private Enforcement: The Admini

strative Phase - Continuing Violations and Tolling of the Filing Period

Back 71

33A charge alleging a hostile work environ

ment 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.

Front 72

44EMPL

OYMENT DIS

CRIMINATION - PA

PROCE

DURES FOR ENFORCING ANTIDISC

RIMINATION LAWS


Private Enfor

cement: The Adminis

trative Phase - Filing Suit

Back 72

44Right 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 termin

ated earlier.

EEOC's Findings: If EEOC proce

dures 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.

Front 73

55EMPLOYMENT DISCRIMINATION - PA

PROCEDURES FOR ENFORCING ANTIDISCRIM INATION LAWS

Federal Government Enforcement

Back 73

55The EEOC may bring suit based on the discrimina tion charged after the completion of its internal processes.

Front 74

66EMPLOYMENT DISCRIMINATION - PA

PROCEDURES FO R ENFORCING ANTIDISCR

IMIN ATION LAWS

Suits Against Government Employers

Back 74

66Title VII applies to state and local govern ments as well as a private employers, but because Eleventh Amen

dment issues, the ADEA and the ADA do not abrogate a state's sovereign immunity.

Front 75

77EMPLOYMENT DISCRI

MINATION - PA

REMEDIES

Legal Remedies: Compensatory Damages

Back 75

77Compensatory damages, which are avail

able under Title VII and the ADA for intentional discrimi

nation, are awarded for future pecu

niary losses and also for non

pecuniary losses, such as emotional pain, inconvenience, and mental distress (if the plaintiff suffered actual injury).

Front 76

88EMPLOYMENT DISCRIMINATION - PA

REMEDIES

Legal Rem

edies: Punitive Damages

Back 76

88Punitive 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 mana

gerial 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.

Front 77

99EMPLOYMENT DISC

RIMINATION - PA

REMEDIES

Legal Remedies: Liquidated Damages

Back 77

99The 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 nonfe

deral discrim

inatee may recover:
(i) unpaid wages;
(ii) liquidated damages in an amount equal to the amount of unpaid wages recovered.

Front 78

eeeeEMPLOYMENT DISCRIMINATION - PA

REMEDIES

Equitable Relief: Reinstat

ement and Retroa

ive Seniority

Back 78

eeeeCommon forms of compens

atory equitable relief are awards of instatement or reinsta

tement and retroactive seniority.

Front 79

ffffEMPLOYMENT DISCRIMINATION - PA

REMEDIES

Equitable Relief: Reinstat

ement and Retroactive Seniority - Seniority Relief

Back 79

ffffClass-based seniority relief for identifiable victims of illegal hiring discrimination is a form of relief generally approp

riate 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 discri

mination.

Front 80

ggggEMPLOYMENT DISCRIMINATION - PA

REMEDIES

Equitable Relief: Reinstatement and Retroactive Seniority - Retroactive Competitive Seniority

Back 80

ggggWhen 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 discri

mination;
(ii) they should be treated as applicants;
(iii) they are presu

mptively entitled to relief.

Front 81

hhhhEMPLOYMENT DISCRIMINATION - PA

REMEDIES

Equitable Relief: Affirmative Action Relief

Back 81

hhhhCourts have required employers to take affirmative race-based steps that benefit an entire class. A court may, in appropriate circumst

nces, 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 relatio

nship of the numerical goals to the relevant labor market; and
(iv) the impact of the relief of the rights of third parties.

Front 82

iiiiiEMPL

YMENT DISCR

IMINATION - PA

REMEDIES

Backpay

Back 82

iiiiBac

kpay includes compensation for lost wages, raises, overtime com

pensation, bonuses, vacation pay, and retirement benefits.

Front 83

jjjjEMPLOYMENT DISCRIMINATION - PA

REMEDIES

Backpay: The Backpay Period

Back 83

jjjjThe beginning date is normally the date the discrim

inatee first lost wages due to the discrimi

nation but is limited to the two years before the filing of a charge with the EEOC. The back

pay period ends on the date of the judgment but can end sooner if: the pla

intiff would have been terminated, the plaintiff rejects an offer of empl

oyment, or the plaintiff resigns from her position.

Front 84

kkkkEMPLOYMENT DISCRIMINATION - PA

REMEDIES

Backpay: Duty to Mitigate Damages

Back 84

kkkkTitle 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.

Front 85

mm

mmEMPL

OYMENT DISCRIMI

NATION - PA

REMEDIES

Front pay

Back 85

mmm

mA front-pay award compe

nsates eco

nomic losses that will occur after the court's judgm

ent up to the date of reinstatement or instat

ement if such relief has been ordered. If reinsta

tement is not ordered, front pay may be awarded as a sustitute. Front-pay awards must be reduced by the amount plaintiff could earn using reason able mitigation efforts.

Front 86

nnnnEMPLOYMENT DISCRIMINATION - PA

ATTORNEYS' FEES: Statutes

Back 86

nnnnEach 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.

Front 87

ppppATTORNEYS' FEES: Prevailing Party

Back 87

ppppTo qualify as the prev ailing party, the party must be awarded some relief by the court (as opposed to simply spurring the def

ndant to change).

Front 88

qqqqE

MPLO YMENT DISCRIMI ATION - PA

ATTOR

NEYS' FEES: Fees to Defendant

Back 88

qqqqA court may exercise its discre tion 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.

Front 89

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Back 89

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Front 90

NN new cfrew s crew up your oirder dont know where anything is and they

ndont care about they job and want to do as less as possib

le.he simpler thd order the less the work prcision n a nd friendliness we all desevr

vvedb that

Back 90

NN new cfrew s crew up your oirder dont know where anything is and theyn

dont care about they job and want to do as less as possible.he simpler thd order the less the work justb

putna piece of chicken between 2 slices of berzd