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31 Cards in this Set
- Front
- Back
Disparate Treatment (def)
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This type of discrimination is when practices constitute deliberate differential or disparate treatment.
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Disparate Treatment - Burdens of Proof
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1) Employee has burden: to show prima facie case of racial discrimination.
2)Burden shifts to employer: to show a legitimate non-discriminatory reason for the rejection. - Legitimate: Does not have to be good, just legitimate. Based on legitimacy of reason not the facts, so a good faith belief trumps facts. 3) Burden shifts back to Employee: To show that the reason was just pretext for discrimination. |
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Disparate Treatment Prima Facie Case (4)
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1) They belong to a racial minority;
2) They applied and was qualified for a job for which the employer was seeking applicants; 3) Despite his qualifications he was rejected; AND 4) After rejection the position remained open and the employer continued to seek applicants from persons of complainants qualifications |
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Mixed motive discrimination (def)
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(PWC v. Hopkins):
This is where there are legitimate and discriminatory reasons for an employer’s actions. |
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Mixed motive discrimination Showing
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1) Race, color, religion, sex, or national origin was a motivating factor - Must have some effect on the decision, does not have to be dispositive, just has to be a factor
2) Direct evidence is not required. |
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Mixed motive discrimination Levels of remedies (1)
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1) Employer can demonstrate that absent the impermissible motivating factor
2) Employer cannot ate that absent the impermissible motivating factor 3) Employer acted with malice or reckless indifference |
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Mixed motive discrimination - remedies - Employer demonstrates disc factor irr.
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the court may grant:
a. Declaratory relief b. Certain types of injunctive relief c. Partial attorney’s fees d. NO DAMAGES |
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Mixed motive discrimination - remedies - Emp can't show
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Can get compensatory damages (capped at 300,000 in combination with punitive.)
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Mixed motive discrimination - remedies - Employer acted with malice or reckless indifference
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Punitive damages are available capped at 300k
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Pattern of practice of intentional discrimination (def)
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this is a type of Disparate Treatment where there is a regular practice that discriminates as opposed to a specific instance
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Partnership decisions
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Not exempt from title VII review
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Implicit Bias
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There can be innate biases. Here INTERST COUNTS, and can be driven by discrimination, meaning that if you only hire males and that creates a lack of interest from another gender/group then that is not ok.
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Bona Fide Occupational Qualification(BFOQ)
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This is when there is a required qualification for a given job.
Ex: there are no female prison guards. - Race: No BFOQ for race cases - Customer preference: Generally does not go towards BFOQ. |
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Sexual Favoritism
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Not sex discrimination unless there is a pattern.
- Because it is not based on the belief that they are better workers. |
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Pregnancy Discrimination Act
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????
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DISPARATE IMPACT (def)
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Where there is a facially neutral employment practice that has a disparate impact on groups of individuals protected by Title VII.
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DISPARATE IMPACT Burdens
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1) Plaintiff must show evidence for prima facie case that there is a statistical discrepancy showing that a neutral factor is causing the statistical disparity.
2) Burden shifts to the employer to show that the practice is justified as a business necessity (job relatedness) 3) Burden shifts back to the plaintiff to show an alternative practice that would serve the interest just as well without the discriminatory effect. |
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DISPARATE IMPACT Prima Facie Case
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Must show that there is a statistical discrepancy showing that a neutral factor is causing the statistical disparity.
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DISPARATE IMPACT AND STATISTICS
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????
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Discrimination Damages Types (3)
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1) Back Pay
2) Compensatory Damages 3) Punitive Damages |
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Discrimination Damages Cap
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There is a sliding scale of capped combined punitive and compensatory damages based on how big the employer is. It is capped at the high end at 300k.
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Discrimination Compensatory damages
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Include
o Damages to future employability o Emotional distress damages: These are typically the compensatory damages. Now they are key. |
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Discrimination Back Pay Damages
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- Always available
- This was not imported by CRA, and are an equitable remedy. - Uncapped |
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Discrimination Punitive damages Damages
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Only available when there is malice or reckless indifference.
- Capped at 300k combined with compensatory |
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Discrimination RETALIATION (def)
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- An employer may not fire, demote, harass or otherwise "retaliate" against an individual for filing a charge of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination.
- The courts give a wide berth for this because they really don’t like retaliation. |
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Discrimination RETALIATION elements
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1) Action by the employee (opposition or filing a claim)
2) Employer action |
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Retaliation (employer action)
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Only has to be “materially adverse” enough to “dissuade a reasonable worker from making or supporting a charge of discrimination.”
- Does not have to be an "adverse action" |
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Opposition clause
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- This covers the same as the participation clause, except you only have to show that you opposed discrimination in some way (take some action).
- Do not have to file a claim with the EEOC. |
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PARTICIPATION clause
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- For the retaliation clause to be in effect the discrimination claim must be alleged with the EEOC.
- Must be in participation in the investigation under the clause. |
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Age discrimination:
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- Analyzed differently than title VII because of the difference in statutory language.
- This is because there is a defense that if they can show a reasonable factor other than age (RFOA) which makes it easier to win a disparate impact case for age discrimination. |
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Reasonable factor other than age (RFOA)
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- Defense to age discrimination.
- If there is a reasonable factor other than age then it will be ok to discriminate. - Not a hard burden to meet. |