Pa Employment Discrimination

Front 1

main statutes

Back 1

title VII of civil rts act of 1964

age discrim in employment act of 67

americans w/ disabilities act of 90

Front 2

types of claims

Back 2

individual disparate trtmnt discrim

systemic disparate trtmnt discrim

systemic disparate impact discrim

harassment

retaliation

Front 3

Title VII prohibitions

Back 3

Unlawful for employer to:
1 discriminate in hiring/discharge of employees or w/respect to compensation, terms, conditions of employment
2 adversely limit, segregate, or classify employees or job applicants

Front 4

Who are Ps for Title VII?

Back 4

Current/former employees AND applicants suing fo discrim on basis of:

race
color
religion
sex
OR
nat'l origin

NOTE: Exception for religious discrimination in 2 cases.
1.

Front 5

Who is a D employer? Who exempt?

Back 5

Employer must have at least 15 employees who work each workday in at least 20 wks/yr

Exempt: tribes and bona fide private membership clubs

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How to determine if P is an employee?

Back 6

master-servant relationship

factors:
can or hire/fire?
can org set rules of work?
is there supervision?
reporting to supervisors
intent
profit/loss sharing

Front 7

Title VII religious discrim: standard, prima facie case and defs

Back 7

employer must accommodate religion UNLESS unable to provide reasonable accommodation

prima facie:
1 employee holds bona fide belief
2 he informed employer of belief
3 he was disciplined for failing to comply w/ conflict requirement

def:
1 attack prima facie case
2 statutory exemptions:
a religious org w/ regard to work connected w/ religious activities
b religious educ institution if curriculum propagates that religion
c if religion is bona fide occupational qualification

Front 8

ADEA basic prohibition

Back 8

same as Title VII, but protected class, Ps, is persons at least 40yrs old (Ds can be 40yrs+, but must be younger than Ps)

Front 9

who is a D for ADEA?

Back 9

hires 20 employees who work every workday at least 20wks/yr

Front 10

defs for ADEA

Back 10

good cause

bona fide exec exception

public safety officer exception

Front 11

ADA basic prohibition

Back 11

employer cannot discriminate against qualified individual

employer must provide reasonable accommodations unless undue hardship

Front 12

ADA plaintiffs

Back 12

(i) qualified person with a (ii) disability

Qualified person is one who can perform ESSENTIAL FUNCTION with OR without a reasonable accommodation.

Front 13

ADA, definition of disability

Back 13

actual impairment

record of impairment

OR being regard as having impairment (even if currently not impaired)

Front 14

how to determine actual disability

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IMPAIRMENT that SUBSTANTIALLY LIMITS a MAJOR LIFE ACTIVITY

1 is there a physical/mental IMPAIRMENT?

2 does the life activity upon which the P relies constitutes a MAJOR LIFE ACTIVITY under ADA (walking, hearing, talking, etc.)

3 does impairment SUBSTANTIALLY LIMIT major life activity

Front 15

who is ADA D employer?

Back 15

15 employees working each workday 20wks/yr or more

Front 16

ADA claims

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disparate treatment

disparate impact

OR

failure to provide reasonable accommodation

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ADA defs

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1. Employment action not motivated by disability, but by legititmate, nondiscrim reason

2. In reasonable accommodation cases: D can argue that any reasonable accommodation would cause UNDUE HARDSHIP.

3 P not qualified b/c she poses direct threat to health/safety of others

4 qualification standards that screen out disabled person are job-related and consistent w/ business necessary AND no reasonable accommodation available

Front 18

treatment vs impact claims

Back 18

treatment--intent

impact--effect

either can be individual or group claim

Front 19

how to prove individual disparate treatment discrim?

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direct evid (only most blatant stmts)

circumstantial evid: P must prove by preponderance of evid that:
1 member of protected class
2 applied for open position (if application case)
3 qualified for position, if application, or was performing satisfactorily if termination
4 suffered adverse employment action

this creates rebuttable presumption of disparate treatment

Front 20

burden framework for individual disparate treatment discrim

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P must prove disparate treatment by preponderance to get rebuttable presumption

D must articulate legimate, nondiscrim reason for employment action, but need NOT convince fact finder that that reason actually motivated his action; then presumption can be dropped

P must then prove pretext, that the real reason for employment action was discriminatory reason

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burden framework for mixed motive case

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P proves her prima facie case

D must articulate legitimate, nondiscrim reason

P must show impermissible factor was a MOTIVATING factor in the decision.

D must show that he would have reached same decision in absence of impermissible factor

Front 22

what is systemic disparate treatment discrim? what is P's proof? D's defs?

Back 22

when employer discriminates against entire class via policies or practices

P must prove that employer has facially discriminatory policy

D's defs are all statutory:
1 bona fide occupational qualification (only for ADEA and Title VII)
2 bona fide seniority system
3 bona fide employee benefit plan

Front 23

systemic disparate impact discrim, what is it?

Back 23

when employer's policies, regardless of intent, adversely affect protected class more than others and cannot be adequately justified

basic test is whether factially neutral policy or practice disproportionately impacts protected class

Front 24

P's prima facie for systemic disparate impact discrim; how to prove?

Back 24

P must prove that employer uses a particular employment practice that causes a disparate impact on basis of protected characteristic

how to prove:

--if P cannot tell which practice causes the impact b/c Ddoes not keep records, P can use "bottom line" stats
--"disparate" is EEOC's 4/5 rule and that is evid of adverse impact

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D's rebuttal for systemic disparate impact discrim

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D must prove that the challenged practice is a JOB RELATED and consistent with BUSINESS NECESSITY.

P may then show that Alternative Employment Practices exist without a discrimintory effect. BUT the practices must not be unreasonable burdensome on the D. (Too expensive)

Title VII Exceptions:
1. Professionally Developed Tests
2. Bona Fide Seniority Systems

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Title VII exceptions per systemic disparate impact discrim for certain employment practices

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1 professionally developed tests

2 bona fide seniority systems (rebuttable if P can prove that seniority scheme is discriminatory itself)

3 bona fide merit and piecework systems

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Disparate Impact - Bona Fide Seniority Systems

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Systems must NOT be:
1. Facially discriminatory
2. Have its genesis in discrimination
3. Maintained or manipulated to perpetuate discrimination

Front 28

Disparate Impact - Professionally Developed Tests Exception

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Test must be:
1. Professionally developed
2. Not designed, intended or used to discriminate
3. Job related

Front 29

types of harassment claims

Back 29

quid pro quo

hostile environment

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quid pro quo details

Back 30

only for sexual harassment;

sexual conduct must be condition of tangible employment benefits

harasser must be in supervisory role and can carry out threats

no defs other than challenging claim head on

employer is vicariously liable

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hostiel work environment P's prima facie

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P must prove that harassment:

1 b/c of P's protected status
2 unwelcome (for sexual harassment)
3 severe or pervasive
4 unreasonably altered the condition of employment so as to create hostile environment
AND
5 employer is liable

Front 32

employer liability per hostile environments

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if created by supervisor, vicarious liability BUT def available IF D proves:
1 he used reasonable care to prevent it
AND
2 employee unreasonably failed to use reporting procedures

if created by co-workers, employer liable under negligence IF P can prove that:
1 employer knew or should have known about harassment
AND
2 employer failed to take prompt remedial action

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two kinds of retaliation

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opposition conduct--P explicitly challenges, opposes, questions employment practice, P need NOT have filed formal charge

participation conduct--P's behavior within formal complaint process (like going to EEOC)

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P's prima facie for retaliation; D's rebuttal

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1 statutorily protected expression
2 employer was aware of conduct
3 P suffered adverse action, not necessarily related to job
4 causal connection btw statutorily protected expression and adverse action

D can rebut by articulating legitimate, nondiscrim reason for adverse action

P can defeat rebuttal by proving pretext

Front 35

Timing for filing of charge; filing suit

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EEOC, within 180 days of discrete act

where state agency exists to handle claim, like PA, EEOC filing time is 300 days and P must file in PA within 180 days

must file suit within 90 days of receipt of rt-to-sue letter

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remedy categories

Back 36

compensatory
punitive
liquidated
equity
backpay
frontpay

Front 37

when are compensatory damages available?

Back 37

Title VII
ADA

for intentional discrim only

Front 38

when are punitives available?

Back 38

Title VII and ADA

for discrim w/ intent, malice or reckless indifference

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when are liquidated damages available?

Back 39

ADEA for willful violations, and for unpaid wages

Front 40

what kind of equity is available?

Back 40

reinstatement

retroactive seniority

Front 41

backpay; what is the scope, what are details

Back 41

includes lost wages, raises, overtime, bonuses, vacation pay, retirement benefits

beginning date is limited to 2 yrs before filing w/ EEOC; there is a duty to mitigate damages

Front 42

what is frontpay?

Back 42

if reinstatement is remedy, then frontpay is econ losses that will occur after judgment but before reinstatement

Front 43

attorney fees?

Back 43

ADEA, mandatory

ADA and Title VII, ct's discretion