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29 Cards in this Set
- Front
- Back
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Who Counts as an Employee?
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Master-Servant idea
Key = control - can ER hire/fire or set rules and regulations of individual's work - extend of supervision - does individual report to a higher-up - is individual able to influence organization - does she share in profits/losses - did parties intend her to be EE |
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Title VII - Generally
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Unlawful ET practice for ER to fail/refuse to hire, discharge, discriminate w/r/t terms and conditions of ET OR limit segregate or classify EEs/applicants in any way that w/deprive her of ET opportunities or adversely affect her b/c of:
- race - color - religion - national origin - sex ER = 15+ EEs, labor unions and ET agencies Exemptions = RIP (religious corp, assn), indian tribes, private membership clubs) |
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Age Discrimination in Employment Act (ADEA) - Generally
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Unlawful for ER to fail/refuse to hire, discharge, discriminate w/r/t terms and conditions of ET b/c of age OR limit, segregate or classify EEs in a way that w/deprive on basis of age.
Ps M/b 40+ and allege claim that she was discriminated against in favor of someone YOUNGER. Ds = ER w/ 20+ EEs, ET agencies, labor unions - Exempts 11th A state immunity |
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Americans with Disabilities Act (ADA) - Generally
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Unlawful to discriminate against a qualified individual on the basis of disability w/r/t job application, hiring, advancement or discharge, compensation, other terms/conditions of ET AND fail to make reasonable accommodation to known physical or mental limitations of otherwise qualified individuals w/r/t disability
- UNLESS ER c/demonstrate accommodation w/cause undue hardship Disability = mental/physical impairment that substantially limits a major life activity Qualified Individual = w/ a disability who, w/ or w/o reasonable accommodation, c/perform essential functions of the job Ds/ERs = 15+ EEs for 20 consecutive work weeks in calendar year current or before, and any agent thereof - Exempts 11th A state immunity |
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Anti-Discrimination Procedures
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PA Human Rights Commission (PHRC) = P M/file w/in 180d of alleged violation
- PHRC has 60d of exclusive jdxn - file a charge if it's reasonably construed as a request for agency to take remedial action to protect EE's rights File w/ EEOC w/in 300d of alleged violation OR 30d after receiving PHRC notice of termination Obtain Right to Sue Letter after 180d of EEOC filing; can let EEOC continue or c/permit agency to process to conclusion (finding no reasonable cause and issue Notice of Dismissal, or find RC, attempt conciliation, and sue, or issue letter) - NOTE: ADEA d/n require right to sue letter for P to file in court File in state or federal court w/in 90d of Notice of Dismissal or Right to Sue Letter |
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Determining When Unlawful ET Action Occurred
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Discrete Acts
- At time of the act, not the time consequences were felt - Notice of Decision Rule = notice to EE of ER decision to take adverse ET action starts filing period (Ledbetter Pay Act) - Discovery Rule (minority) = filing period tolled until EE discovers or s/h discovered that discrimination occurred OR - Hostile Work Environment = no time-bar if all acts constituting the claim are part of the same unlawful ET practice AND at least one act falls w/in time period |
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Title VII Claims
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IDT - pretext or MM
SDT DI Retaliation Harassment |
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Individual Disparate Treatment - Pretext
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ER intentionally treats individual differently b/c of a prohibited characteristic
P m/prove PFC by preponderance = member of protected class, qualified for position held, applied for open position, adverse ET action, position remained open or filled by a person outside protected class - creates presumption and shifts burden of production to D D M/show Legitimate Non-Discriminatory Reasons - Silent = P wins P bears ultimate burden of persuasion = pretext (discredit LNRs, which gets to jury), and real reason was discrimination and that it was a determinative factor in the decision |
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Individual Disparate Treatment - Mixed Motive
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Price Waterhouse = motivating factor and same decision defense (O'Connor wanted "substantial factor")
CRA Amendments 1991 = unlawful ET action established (liability attaches) when "a motivating factor" was an impermissible reason; Same Decision Defense can reduce P's remedies if D shows by preponderance = declaratory or injunctive relief, fees and costs NOT damages, reinstatement, hiring or promotion. DISTINGUISH CRA FROM PRICE WATERHOUSE = amendments attach liability after P shows a motivating factor, while Price determines liability after D defends |
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Individual Disparate Treatment - Mixed Motive - Desert Palace v. Costa Twist
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USSC said P d/n need Direct E to get "motivating factor" instruction but d/n decide if it reaches beyond MM cases.
Third Circuit = limits Costa to TVII and keeps ADEA and ADA under Price Waterhouse Standard |
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Systemic Disparate Treatment
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ER discriminates against an entire class - either formal policy of discrimination OR pattern/practice of discrimination.
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Systemic Disparate Treatment - Formal Policy of Discrimination
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Facially discriminatory
Statutory Defenses - BFOQ = requires D to prove: qualification reasonably necessary to normal operation of business AND religion, sex or national origin (never race!) is a proxy for the qualification either b/c RC to believe all/substantially all persons in class c/n perform safely and efficiently the job OR some EEs c/n and it is impossible to deal w/ them individually - BFSS u/l it permits or requires involuntary retirement b/c of age - BF EE Benefit Plan |
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Systemic Disparate Treatment - Pattern or Practice Discrimination
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P's PFC
- ER through SOPs discriminates against a protected class - Use statistics correct in geographic space and skill; anecdotal or historical E D Rebuts by challenging P's PFC (stats, scope), the inference of discriminatory intent, or assert statutory defense (i.e. BFOQ) Note: Voluntary Affirmative Action is permitted, under Weber Test |
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Systemic Disparate Treatment - Voluntary Affirmative Action
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Voluntary Affirmative Action is permitted, under Weber Test:
- Private, voluntary, race-conscious affirmative action plans MUST aim to remedy manifest imbalance in traditionally segregated job categories AND cannot unduly trammel the rights of disfavored groups AT TRIAL: P proves PFC for SDT, then D produces LNR of voluntary affirmative action plan, and P M/then prove that the plan is invalid for failure to meet Weber test |
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Disparate Impact
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Facially neutral policies adversely affect protected class more than others AND cannot be justified
P's PFC = - member of protected class - ID particular ET practice causing impact (bottom line exception) - causal connection b/t practice and impact - disproportionate impact = 4/5 rule D Rebuts by challenging PFC, use d/n cause DI, business necessity and job relatedness. - Exceptions for certain practices - Professionally developed tests = ER can rely or act on these - BFSS allowed for different compensation and terms/conditions of ET for different groups - Bona Fide Merit and Piecework systems P Shows Alternative ET Practice - achieves ER goals w/o discriminatory impact - M/b reasonable to expect ER to use it, serves same purpose as contested practice, AND is not discriminatory |
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Harassment
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Quid Pro Quo = sleep w/ me or you're fired results in VL of ER w/no defenses
Hostile Work Environment = P proves: - member of protected class - conduct b/c of her membership - behavior was unwelcome - behavior was severe or pervasive = consider frequency, severity, whether conduct was physically threatening or humiliating, and if it unreasonably interfered w/ job performance ER liability - Farragher Ellerth AD = Supervisors: ER used RC to prevent and promptly correct harassment AND EE Failed unreasonably to use ER's reporting procedures - Co-Workers = ER liable under negligence if P proves ER knew or s/h/k about harassment AND failed to take prompt remedial action |
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Retaliation
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P's PFC:
- P engaged in statutorily protected expression (opposition - if P demonstrates reasonable GF belief that ER's conduct was unlawful - or participation conduct) - ER was aware of the conduct - P suffered adverse ET action - includes harm outside of workplace and M/b materially adverse such that a reasonable worker w/b dissuaded from making/supporting a discrimination charge AND - Causal connection b/t the protected expression and the adverse action (temporal only = M/b close in time) D Rebuts w/ LNR for action (i.e. P's opposition was unlawful) P M/then show that D's reason was pretextual for actual discriminatory motive |
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TVII - Pregnancy Issues
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Pregnancy Discrimination Act of 1978
- Because of/on basis of sex includes pregnancy, abortion, childbirth and related medical conditions - pregnancy, etc., c/n/b treated less favorably than other medical conditions - preferential treatment h/b allowed |
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TVII - Grooming and Dress Code Issues
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Not discrimination u/l it imposes unequal burden on one sex
Could also raise religious discrimination issues |
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TVII - Discrimination b/c of Sexual Orientation
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Not protected under TVII - but discrimination based on stereotypes is protected (i.e. not permitted under TVII)
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TVII - Religious Discrimination
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Duty to Accommodate religious practices and observances UNLESS ER demonstrates it w/b Undue Hardship on conduct of its business
- reasonable accommodation = allows EE to engage in her observance/practice, d/n have to take her preference - undue hardship = if no reasonable accommodation; more than de minimis cost (economic or non-economic) is UH IDT cases = P M/show ER knew of her religious belief and that belief M/b a bona fide belief (occupies in the place of the believer...) EXEMPT = religious organizations, corps, assns, etc. W/ Ministerial exception = ct dismisses female minister's claim of sex discrimination b/c it would require ct to determine matters of internal church doctrine Statutory defenses = BFOQ |
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ADEA - Statutory Defenses
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Unique = Good cause AND reasonable factors other than age (RFOA)
- ER M/prove RFOA defense in response to DI claims BF Executive Exception = mandatory retirement at 65y when BF Exec in policy-making position and he receives benefits of at least $44k/year Public Safety Officers c/n subject to mandatory retirement or not hired b/c of age BF ET Benefit Plans = prohibited except w/r/t lower benefits of older workers where the actual amount of payment or cost incurred is no less than that on behalf of a younger worker Early Retirement Incentive Plans = permitted if voluntary; those EEs who accept them c/n attack (knowing and voluntary waivers of ADEA rights) Can Require Arbitration! |
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ADA - Amendment in 2009 Broadened Coverage
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Definition of Disability
- actual, present physical/mental impairment (includes cosmetic disfigurement, but not physical characteristics like eye color) that substantially limits a major life activity (include episodic, in remission, and w/o regard to corrective measures (except glasses and contacts)) - Record of such disability - Regarded as disabled Qualified Individual = w/or w/o reasonable accommodation can perform essential job functions - - ER's job description, includes regular and timely attendance - Reasonable accommodation includes making existing facilities accessible and usable job restructuring, part=time/modified schedule, reassignment to VACANT position, provision of readers, interpreters, aids. Cost is considered. |
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ADA - Defenses Available
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LNRs
Undue Hardship - requires significant difficulty and expense - factors = size and financial resources of ER - BOP on P that reasonable accommodation exists, BOP on D that accommodation w/b UH Direct Threat = to health and safety of others in workplace - significant risk that c/n/b eliminated by reasonable accommodation - M/b determined on objective medical judgment Job Related and Consistent w/ Business Necessity = and performance c/n/b accomplished by reasonable accommodation - can defend facially discriminatory policies! |
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ADA - Drug and Alcohol Users
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Current drug users excluded from ADA coverage
Alcoholics and drug addicts are protected from discrimination on basis of addiction/alcoholism |
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ADA - Medical Examination and Inquiries
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Pre-ET exams = ER c/inquire and c/condition ET offer on exam results so long as:
- all entering EEs are subject to the exam AND - results are kept confidential Testing for illegal drugs is NOT a medical exam Medical exams/inquiries of CURRENT EEs = c/n do u/l it's JR/BN - and M/b kept confidential |
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Employment Discrimination - Legal Damages
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LIMITED to intentional discrimination claims
Compensatory = awarded for future pecuniary loss, emotional pain, suffering, mental anguish, loss of enjoyment, etc. Punitive = limited to cases of intentional discrimination with Malice or Reckless Indifference - VL = when actor acted in managerial capacity and in the scope of ET AND ER d/n use GF efforts to comply Liquidated = ONLY ADEA and for willful violations (knew or showed reckless disregard) - permits double recovery (unpaid wages and LD for amount of unpaid wages)! Note: After Acquired evidence will result in no front pay, reinstatement, or back pay |
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TVII - Damage Caps
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15-100 EEs = $50k
101 - 200 EEs = $100k 201 - 500 EEs = $200k 500+ EEs = $300k |
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Employment Discrimination - Equitable Relief
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Reinstatement and Retroactive Seniority
Affirmative Action = class-wide race conscious remedy for SDT Back Pay = up to 2y, includes lost wages, overtime, bonuses, vacation pay, retirement benefits - starts on date P first lost wages to date of judgment, death, or AAE discovery - M/b reduced by amount P earned or c/h earned w/ reasonable diligence (duty to mitigate) Front Pay = substitute for reinstatement, losses after date of judgment - estimates total future salary and benefits - note duty to mitigate Attorney fees = provided for prevailing party under all three statutes - so long as awarded some relief. |
