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75 Cards in this Set
- Front
- Back
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What are the three statutes governing discrimination |
1. Title VII of the Civil Rights Act of 1964 2. The Americans with Disabilities Act (ADA), and 3. The Age Discrimination and Employment Act (ADEA) |
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General Procedure for answering ED claims |
1. Identify statute and the type of claim beingbrought
2. Determine the elements of the plaintiff’s primafacie case (Individual Disparate Treatment, Systemic Disparate Treatment, Disparate Impact Case) 3. Determine what burden of proof will be shiftedto the employer, and the elements of the employer’s response. 4. Finally, assuming the employer has met itsburden, determine the remaining elements of the plaintiff’s case and evaluatewhether the plaintiff has met that burden |
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Title VII protects individuals against discrimination based on . . . ? |
Race, color, national origin, sex, or religion
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To be covered by Title VII, an employer needs to employ ____ or more employees |
15 |
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Potential plaintiffs under Title VII? |
Applicants, employees, or former employees |
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Are independent contractors "employees" under Title VII? |
No |
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Under Title VII, does sex include sexual orientation? |
No. It prohibits discrimination against men and women. Word “sex” specifically includes pregnancy, child birth, and medicalconditions related to child birth and pregnancy |
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Title VII in regard to stereotypes |
Employerscan’t take adverse employment action against an employee for failing to meetstereotypical assumptions about how a protected class should behave
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What is the Americans with Disabilities Act (ADA) |
ADAprohibits discrimination by employers against qualified individuals withdisabilities
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What are the four distinct disabilities under the ADA? |
1. Actual disability
2. Record of disability 3. Employer regarding as having a disability (evenif you don’t); and 4. Having a relationship to a person with adisability |
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To be covered by the ADA, defendant employers need to employ _________ |
15 or more |
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ADA plaintiffs |
Applicants, current employees, and formeremployees may be protected from discrimination if they meet one of thedefinitions of “disability” are qualified to perform the essential functions ofa job, with or without a reasonable accommodation
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ADA (Actual Disability) |
Under the ADA, an actual disability exists whena person has any mental or physical impairment that substantially limits at least one major life activity
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What is a major life activity |
Major life activities include: Eating, sleeping,standing, lifting, reading, and bodily functions such as the immune system andnormal cell growth
A substantial limitation on a major lifeactivity need not prevent a person from performing a major life activity andneed not severely restrict a person from performing a major life activity
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ADA (Record of Disability) |
Applies to individuals who have recovered from acondition that once substantially limited a major life activity. This may applyto cancer survivor
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ADA (Regarded as Having a Disability) |
Prohibits employers from treating an individualas if he or she had an impairment, when in fact they do not
Employer doesnot have to believe that the impairment rises to the level of an actualdisability, rather, if an employer takes an employment action based on animpairment, or belief that an impairment exists, the employer has regarded theperson as disabled, unless the impairment is transitory and minor |
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ADA (Relationship with Person Having a Disability) |
Here, plaintiffseeks protection under the ADA based on some other person’s disability. Otherperson must have a disability under one of the other three definitions of theADA |
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Elements of a Failure to Accommodate Claim |
Employersare required to provide qualified individuals with disabilities with reasonable accommodations if thereasonable accommodation will permit the individual to perform the essentialelements of the job
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Regarding ADA, what are "essential job functions" |
1. Does the position exist to perform thatfunction?
2. Does the function need to be done and are thereonly a limited number of people to do it? 3. Is the function specialized? |
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Regarding ADA, what is a reasonable accommodation? |
1. Any change to procedure, the job, or workenvironment that permits a qualified individual with a disability to performthe essential functions of the position.
2. If no accommodation can be made in their currentposition, moving the employee to an open position for which they are qualifiedmay be a reasonable accommodation 3. There is no requirement that an employee bepermitted to “bump” another employee out of their position |
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Elaborate on the "interactive process" |
If a disability is apparent, or if an employeemakes known that they have a disability that is preventing them from performingthe essential elements of their job, the ADA requires the employer to discusspotential reasonable accommodations with the employee.
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Employers are ____ _________ toprovide the exact accommodation requested by the employee |
Not required. Employer may provide any reasonableaccommodation that effectively permits employee to perform essential functionsof the job |
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Discuss medical exams under the ADA |
Employers are restricted from performing medicalexams, generally, so that if an employee does not come forward and if adisability is not apparent, then there is no requirement that the employerenter into the interactive discussion or provide a reasonable accommodation
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When may an employer require a medical exam under the ADA? |
When hiring, an employer may require a medicalexam only after making an offer of employment, by conditioning the offer ofemployment on successfully passing the exam.
Current employees may only be required to take amedical exam when the exam is job-related and consistent with businessnecessity. |
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What is undue hardship? |
If a plaintiff can demonstrate that a reasonableaccommodation exists that would permit the plaintiff to perform the essentialfunctions of the job, the plaintiff’s employer may only refuse to provide the accommodation if the plaintiff’semployer can prove that the accommodation would cause an undue hardship.
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How can employer prove undue hardship? |
To prove an undue hardship, the employer mustshow that the accommodation would impose significant difficulty or significant expensein light of its size and financial resources of that employer
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Defendants under the ADEA need to employ _________. ADEA also applies to employer's ______, _______, and _________ |
20 or more. employer's executives, managers, and supervisors |
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ADEA Plaintiffs: ADEA protects individuals _____________ |
40 years and over. |
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Does Reverse discrimination does not exist on the ADEA?
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No |
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What are the classes of employees the ADEA does not protect? |
1. Bonafide executives
2. Safety officers; and 3. Some elected and appointed government officials |
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ADEA provides employers with three statutory defenses, what are they? |
1. Bona Fide Occupational Qualification (BFOQ)· 2. Reasonable Factor other than Age (RFOA)· 3. Good Cause
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ADEA (Elaborate on Bona Fide Occupational Qualification (BFOQ)) |
1. Defense may be available when an employer adopts a policy that specifically relies on age as an employment criterion.
2. Employer must show that the requirement must be reasonably necessary to the essence of the employer’s business. 3. Additionally, all or substantially all older excluded individuals must be unable to perform the job safely and efficiently, or dealing with individuals, as opposed to the group, would be impractical. 4. Employer must be able to show that age is empirically linked to a decline in job competency. 5. Employershave a high standard and this is a very narrow exception |
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ADEA (Elaborate on Reasonable Factor Other Than Age (RFOA)) |
1. Plays a role in disparate impact claims (when a neutral policy has a statistically adverse effect against plaintiff’s protected class)
2. RFOA defense permits employers to rely on such neutral policies even if the policy has an adverse effect against older workers. |
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ADEA (Early Retirement Incentive Plans) |
Underlying policy here is that a voluntary severance plan is treated by the law as a benefit, and cannot be used as the basis of an age discrimination claim
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Bona Fide Seniority Systems and Employee Benefit Plans
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ADEA recognizes that length of service is a valid criterion for an employer to use in providing benefits and awarding open positions
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OlderWorker Benefit Protection Act (OWBPA)
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Protects employees covered by ADEA by prohibiting employers from rushing them to decide whether to sign a waiver of ADEA rights in return for a severance package.
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OWBPA requires employers to |
1. Write waivers so that they are understood
2. Refer specifically to the ADEA so that employees know that they will not be able to sue for age discrimination, and 3. Advise employees to consult a lawyer Employees have 7 days to revoke agreement after they sign it If single employee is being offered waiver, theymust be given 21 days to consider signing the waiver. When more than oneemployee is being offered waiver, the group of employees must be given 45 daysto consider the waiver. |
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Individual Disparate Treatment Claim |
Thisis the most common type of discrimination claim. Arises when a single employee alleges that an employer intentionally discriminated against them because of their membership in a protected class
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Direct Evidence for Individual Disparate Treatment Claim |
A plaintiff can meet her burden of proving intentional discrimination by producing a document, or identifying a statement made by the employer, that shows that an adverse employment action was taken against the plaintiff because of her membership in a protected class
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Circumstantial Evidence for Individual Disparate Treatment Claim and Burden Shifting Framework |
Most plaintiffs cannot usually produce “smoking gun” evidence of discrimination.
As such, courts have established a burden-shifting framework to determine employer’s intent: 1. Process begins when plaintiff successfully sets forth a prima facie case of discrimination. 2. Burden shifts to employer to articular a legitimate non-discriminatory reason (LNDR)for the employment action it took. 3. Burden then shifts back to plaintiff to prove that employer’s articulated reason is not the true reason and that discrimination was real reason for employer’s action. |
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Prima Facie Case for Individual Disparate Treatment Claim (M.Q.A.S) |
1. Plaintiff must be a member of a protected class. 2. Plaintiff is qualified for the position in question 3. Plaintiff was subjected to an adverse employment action 4. Similarly situated individual not in the plaintiff’s protected class was treated better
By establishing a prima facie case, theplaintiff creates a rebuttablepresumption that discrimination has occurred. If employer does not respondwith an LNDR, plaintiff will prevail.
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Prima Facie Case for Plaintiff Who Has Been Fired |
1. Plaintiff was in a protected class
2. Plaintiff was qualified for position 3. Plaintiff was actually fired 4. Employees not in same protected class were retained |
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Prima Facie Case for Plaintiff Who Has Not Been Promoted? |
1. Plaintiff was in a protected class
2. Plaintiff was qualified for position he wasseeking to be promoted to 3. Plaintiff was not promoted 4. A person notin the same protected class received the job or the position remained openand the employer continued to accept applications after the plaintiff wasrejected |
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What is a legitimate non-discriminatory reason (LNDR)? |
AnLDNR may be any reason for the employment action other than the plaintiff’sprotected class. If the employer produces some evidence of its LDNR, therebuttable presumption created by the plaintiff’s prima facie case disappears
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What are Mixed-Motive Cases? |
At times, there is both a legitimate anddiscriminatory reason for taking the action challenged by the plaintiff
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For Mixed Motive Cases, what are the two tests? |
Depends on type of claim 1. Under theADEA, and in retaliation cases: plaintiffs must prove that the retaliatoryor discriminatory action is the but forcause of the employer’s decision. 2. For all other claims under T7: Plaintiff’sburden is to show that the discriminatory reason was a motivating factor in the decision. |
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What is after acquired evidence? |
Situations when after an employment decisionadversely affecting the plaintiff is made, the employer will discover that theplaintiff had engaged in misconduct that could have otherwise justified theemployment decision
This doesnot affect the employer’s liability, however, after-acquired evidence willlimit the plaintiff’s damages. |
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What is Systemic Disparate Treatment |
Refers to cases in which the plaintiff contendsthat the employer intentionally discriminated against an entire protected class.
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There are two types of Systemic Disparate Treatment, what are they? |
1. Formal Discriminatory Policies 2. Pattern and Practice |
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SDT (Formal Discriminatory Policies) |
Policies that specifically address a protectedclass in a way that intentionally adversely affects that class (i.e. mandatoryretirement age)
Only way an employer can defend a formaldiscriminatory policy is by establishing a BFOQ |
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SDT (Pattern and Practice) |
1. Plaintiff alleges that discriminating againstthe plaintiff’s protected class is the employer’sstandard operating procedure of the company.
2. Because the employer would obviously not have aformal written policy authorizing discrimination, the plaintiff must prove hercase through the use of statistics and anecdotal evidence. 3. An employer can defend against such a case bydisproving the plaintiff’s statistics or by offering a non-discriminatoryreason to explain statistics |
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Disparate Impact Claims |
These claims allege that a facially neutralpolicy or practice has a statistically significant adverse impact on aprotected class
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Prima Facie Case for Disparate Impact Claims |
1. Identify a facially neutral policy or practice
2. Demonstrate that the plaintiff’s protected classhas been adversely affected by the employer 3. Demonstrate that there is a causal connectionbetween the policy/practice and the adverse effect |
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Employers defenses for disparate impact claims |
Employer can defend by either disproving thestatistics or proving that the practice is job related and consistent withbusiness necessity. The “bottom line” isnot a defense.
If employer demonstrates that practice is abusiness necessity, burden shifts back to plaintiff to show that there is aless discriminatory alternative to the employer’s practice |
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What is a Religious Failure to Accommodate Claim |
T7 requires employers to provide reasonableaccommodations for their employee’s religious beliefs.
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Prima Facie Case for Religious Failure to Accommodate Claim |
1. Plaintiff must hold a bona fide religiousbelief, broadly defined
2. Plaintiff must inform the employer about thebelief 3. Belief must require the plaintiff to conflictwith some job requirement 4. Employer must take adverse action based on theconflict |
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Employer's response to prima facie case for religious failure to accommodate claim |
If plaintiff makes out prima facie case,employer has a duty to explore whether a reasonable accommodation exists
An employer’s duty to accommodate religiousbeliefs is not as broad as the dutyto accommodate under the ADA. Any hardship that imposes more than a de minimus hardship is undue in thiscontext |
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Harassment Claims |
Plaintiffalleges that employer has detrimentally altered the plaintiff’s terms and conditionsof employment.
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What are the two types of harassment claims |
1. Quid Pro Quo: Limited to sexual discrimination
2. Hostile Environment: Any protected class may bring a hostile environment claim |
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Quid Pro Quo Harrassment |
1. A supervisor, manager or other agent of the employer
2. Made a sexual proposition 3. Under threat of adverse employment action, whichas carried out, and 4. That the adverse employment action resulted fromrefusing the proposition |
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Hostile Environment Harassment |
Hostile environment claims may be brought whenthere has been no tangible adverse employment action. Rather, the plaintiff isexposed to unwelcome or offensive conduct because of the plaintiff’s membershipin a protected class
To be actionable, such conduct must be severe or pervasive such that it alters the plaintiff’s terms and conditionsof employment. The “severe or pervasive” test is subject to thereasonable person standard |
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Employer Liability Claims |
Will be liable if the quid pro quo sexualharassment was engaged in by a supervisor. Similarly, if a hostile workenvironment is created by a supervisor, employer will be liable.
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Affirmative Defense to Hostile Work Environment Claim |
If the plaintiff alleges a hostile workenvironment that has not resulted in atangible adverse employment action, employer may avoid liability by provingthat it took reasonable measures to prevent and correct harassing behavior andthe plaintiff unreasonably failed to utilize those measures
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What is a Retaliation Claim |
Title VII, the ADA and the ADEA protectemployees from retaliation if they engage in a protected activity.
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What is a protected action under a Retaliation Claim |
Protected activity is defined as either:
1. Opposing discriminatory practices; or 2. Filing a charge or in any other way participating in an investigation or proceeding under one of the statutes. 3. Called the opposition clause and participation clause respectively |
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Prima Facie Case for Retaliation |
Plaintiff must show:
1. They engaged in a protected activity 2. The employer took adverse action against theplaintiff 3. There is a causal connection between the activity and the adverse action taken |
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Employer Response to Retaliation |
Articulatea LNDR for adverse action
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Plaintiff's Ultimate Burden in Retaliation Claims |
Provethat employer’s LNDR is not the real reason for the adverse action and that thetrue reason is retaliation for undertaking the protected activity
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How to File a Charge for Discrimination |
An employee who wishes to bring a claim ofdiscrimination is required to file a charge of discrimination with either theEEOC or the Pennsylvania Human Relations Commission (PHRC)
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In PA, how long does an employee have to file a charge with the EEOC and PHRC |
EEOC: 300 days PHRC: 180 days |
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Lilly Ledbetter Fair Pay Act of 2009
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Ifdiscrimination infected any compensation decision, every subsequent applicationof that decision constitutes a new act of discrimination.
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Investigation and Conciliation of Discrimination Claim by EEOC |
1. If EEOC concludes insufficient evidence:Employee has 90 days from “right to sue” letter to commence an action infederal district court
2. If EEOC concludes charge has merit: Will issue afinding of “reasonable cause” and attempt to conciliate the case. |
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What are the legal remedies under T7 and ADA? |
1. Compensatory damages, capped with punitivedamages
2. No liquidated damages 3. Attorney’s fees may be awarded |
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Legal Remedies under ADEA? |
1. No compensatory damages or punitive damages
2. Liquidated damages may be awarded 3. Attorney’s fees may be awarded |
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What equitable remedies are permitted under all three statutes? |
Equitable remedies permitted under all threestatutes are the same:
1. Instatement 2. Reinstatement (with retroactive seniority) 3. Back pay; and 4. Front pay (all offset by duty to mitigate) |
