Employment Discrimination

Front 1

DEFENSES TO ADEA

Back 1

1. Good cause – not unlawful – employer bears burden of production and persuasion

2. Bona Fide Executive Exception – can be mandatorily retired at 65 – must have been B.F. executive for two years before retirement and receive retirement benefit of at least $44k

3. Public safety officers exception

4. Bona Fide employee benefit plan - lower benefits for older people are ok

5. Early retirementincentive plans

Front 2

ADEA - BFOQ (bona fide occupational qualification)

Back 2

Age is reasonably necessary to the normal operation of a particular business Employer must show:

1. Requirement is reasonably necessary to the essence of its business;

2. it has reasonable cause for believing that all or substantially all persons within the class would be unable to safely and efficiently perform the duties of the job

Customer preference can be taken into account ONLY when based on company's inability to perform the primary function or service it offers

Front 3

AMERICANS WITH DISABILITIES ACT (ADA)

Back 3

Unlawful to discriminate against employee because of qualified disability

Employees – Qualified individual with disability (one who has a disability and can perform the essential functions of the job with or without reasonable accommodations)

Defendant – Employer with 15 or more employees(Duty to accommodate INCLUDES consideration of reassignment of an employee to an appropriate position if available)

Front 4

DISABILITY DEFINED UNDER ADA

Back 4

Must have actual present disability, record of disability or be regarded asdisabled

1. Actual present disability – mental or physical impairment(psychological disorder; cosmetic disfigurement NOT weigh, pedophile) thatsubstantially limits major life activity

2. Record of disability- past record substantially limits majorlife activity – even if not currently impaired

3. Regarded as disabled – actual or perceived impairment – need not limit major life activity

Front 5

CLAIMS UNDER ADA

Back 5

Prima Facie

1. He is disabled person within the meaning of the ADA;

2. He is otherwise qualified to perform the essential functions of the job;

3. He has suffered an otherwise adverse employment decision as a result of the discrimination

Front 6

DEFENSES UNDER ADA

Back 6

1. Action not motivated by disability – had legitimate non-discriminatory reason

2. Cannot provide reasonable accommodations without undue hardship - significant difficulty or expense - employee must show reasonable accommodation exists

3. P not qualified because poses direct threat (significant risk to others which can't be eliminated without reasonable accommodation) to health and safety to herself and others –cannot be eliminated

4. Employer can argue qualification is job related business necessity

5. Qualification screen out are job related and consistent with business necessity and performance can’t be accomplished with reasonable accommodations

6. LNDR

Front 7

EMPLOYMENT DISCRIMINATION CLAIMS

Back 7

1. Individual disparate treatment- need intent

2. Systematic disparate treatment – need intent

3. Systematic disparate impact – NO intent needed

4. Sexual harassment –need intent

5. Retaliation – needintent

Front 8

INDIVIDUAL DISPARATE TREATMENT

Back 8

1. P’s prima facie case –

a. member of protectedclass

b. applied for open position

c. qualified for position

d. suffered adverse employment action

Inference discrimination if position remained opened or filled by someone outside protected class

2. Burden shifts -Employer needs to show legitimate, non-discriminatory reason (can be illogical or not business related) – show and presumption goes away

3. Burden shifts -P needs to prove the LNDR was not real reason and discrimination was a determinative factor in decision

Front 9

INDIVIDUAL DISPARATE TREATMENT –MIXED MOTIVE

Back 9

CANNOT USE ADEA

1. P shows prima facie case (same as single motive) + offers any direct evidence

2. D gives LNDR

3. P shows impermissible factor was motivating factor

4. D shows same decision in absence of impermissible factor (D liability attaches here)

P gets limited remedies –declaratory relief, injunctive relief, attorney’s fees and costs NOT damages or order of reinstatement

Under ADA – need direct evidence

Front 10

SYSTEMATIC DISPARATE TREATMENT -EMPLOYEE ARGUMENT

Back 10

Employer discriminates against an entire class – must show intent of employer

P shows:

1. Employer has facially discriminatory policy OR

2. Pattern/ practice of discrimination

Prove by direct, circumstantial evidence (statistics) or historical evidence of the treatment of the protected class and testimony from individual members of the protected class

Front 11

DISPARATE IMPACT

Back 11

Employer’s polices,regardless of intent, adversely affect protected class more than others and cannot be adequately justified

P shows:

1. Protected class

2. Identify the neutral employment practice causing impact

3. Show statistics (EEOC 80% rule)

a. Bottom Line exception –P cannot tell what practice is but uses bottom line statistics

b. 4/5 rule – protected group selection rate less than 4/5 – adverse

D’s rebuttal:

1. Business necessity and job relatedness Bottom line defense not valid

Cannot alter

Front 12

RETALIATION

Back 12

P’s cannot be retaliated against for exercising claims under statutes

Prima Facie -

1.Proof that P was engaged in an activity protected by Title VII

2. D subsequently took action adverse to him

3. Casual connection existed between the protected activity and the action

1. Opposition where P is explicitly challenging, opposing or questioning an employment practice of employer – P need not have filed formal charge but must demonstrate reasonable, good faith belief that the conduct is unlawful

2. Participation filing charged with EEOC Employer – shows non-discriminatory reason

Front 13

HARASSMENT-QUID PRO QUO

Back 13

Sexual conduct is a condition of tangible employment benefits ("have sex with me or I will fire you")Harasser must be supervisor with ability to carry out threats

NO FORMAL DEFENSE

Front 14

HARASSMENT - HOSTILE WORK ENVIRONMENT

Back 14

Unwelcome sexual conduct which interferes with P's work performance

P's case

1. Prove harassment was bc of P's protective status (but for test)

2. Unwelcomed (for sexual harassment case)

3. Severe/pervasive - consider severity; frequency; physical; interfere with work

4. Unreasonably altered condition of her employment so as to create a hostile work environment

Front 15

EMPLOYER LIABILITY FOR HOSTILE WORK ENVIRONMENT

Back 15

1. Created by supervisor - employer is vicariously liable

2 Defenses:

1. Used reasonable care to prevent and promptly correct harassment; and

2. Employee unreasonably failed to use reporting procedures provided by employer

2. Created by Co-Worker - held liable under negligence if P prove-->employer knew or should have known about the harassment and the employer failed to take prompt, remedial action

Front 16

RELIGIOUS DISCRIMINATION

Back 16

2 Exceptions

1. Religious organization with respect to employment of people who perform work connected with carrying on religion;

2. Education institution whose curriculum is geared at furthering religion

Prima Facie Case

1. He holds a sincere religious belief that conflicts with job requirement;

2. He informed his employer of the conflict;

3. Adverse action was taken for failing to comply with the conflicting requirement Employer must reasonably accommodate so long as not undue burden (more than de minimus)

Front 17

GENDER DISPARATE TREATMENT

Back 17

(NOT SEXUAL ORIENTATION)

1. Was member of protected group

2. Was qualified to perform job

3. Suffered an adverse employment action

4. Was treated differently from others who were not part of the protected group

Front 18

PATTERNS AND PRACTICE DISCRIMINATION

Back 18

P must prove employer's standard operating procedure discriminates against protected class

Prima Facie - If no direct evidence, can use circumstantial - statistics, historical evidence,testimony protected class

D's rebuttal -

Challenge statistics - say P used wrong one

Provide own statistics

Non discriminatory reason

Front 19

LEGAL REMEDIES

Back 19

1. Compensatory - Title VII, ADA - intentional discrimination - future $ loss, emotional pain and suffering

2. Punitive - Title VII,ADA - intentional discrimination w/malice or reckless indifference [employer not liable manager UNLESS would be appropriate and did not use good faith comply] CAP - # employees

3. Liquidated - ADEA (all get)- willful violation employer knew prohibited or showed reckless disregard, unpaid wages

Front 20

LEGAL RELIEF DAMAGE CAP

Back 20

15-100 employees - $50k

101-200 employees - $100k

201-500 employees - $200k

Over 501 employees - $300k

Front 21

EQUITABLE RELIEF

Back 21

Reinstatement and retroactive seniority

Affirmative action relief- class wide, race conscious remedy for systematic discrimination

Back Pay - All compensation P would have received in absence of discrimination [ first day P lost wages and goes back 2 years - ENDS if employee dies, rejects offer of reinstatement or on date of judgment]

Front Pay - substitute for reinstatement [ compensate for losses that occur after judgment - estimate future salary and benefits, BUT reduced by what P could earn with reasonable diligence]

Front 22

CHOOSE BETWEEN CLAIMS

Back 22

1. More than one person?

Yes - is practice at issue neutral?

Yes-look at disparate impact

NOT neutral - systematic disparate treatment

2. ONLY 1 person?

Look at individual disparate impact

3. Employee complained?

Look at retaliation

4. Harassment - obvious -"because of"

Front 23

3 STEPS DISABILITY UNDER ADA

Back 23

3 steps:

1. Is there a physical or mental impairment?

2. Does life activity constitute a major life activity?

3. Does impairment substantially limit the major life activity?

Front 24

DEFENSES UNDER ADA CONTINUED

Back 24

5. Qualification screen out are job related and consistent with business necessity and performance can’t be accomplished with reasonable accommodations

6. LNDR

Front 25

SYSTEMATIC DISPARATE TREATMENT - D ARGUES

Back 25

D argues:

1. Attacks numbers used and inferences drawn

2. Bona Fide Occupational Qualification (BFOQ) – qualification is reasonably necessary to normal operation of a particular business and either

a. reasonable cause to believe that substantially/all persons in class are unable to perform safely and efficiently duties of the job OR

b. some employee in class possess trait precluding safe and efficient job performance

3. Seniority system – ok if based on length of service