Employment Law - Discrimination

Front 1

Disparate Treatment (def)

Back 1

This type of discrimination is when practices constitute deliberate differential or disparate treatment.

Front 2

Disparate Treatment - Burdens of Proof

Back 2

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.

Front 3

Disparate Treatment Prima Facie Case (4)

Back 3

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

Front 4

Mixed motive discrimination (def)

Back 4

(PWC v. Hopkins):
This is where there are legitimate and discriminatory reasons for an employer’s actions.

Front 5

Mixed motive discrimination Showing

Back 5

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.

Front 6

Mixed motive discrimination Levels of remedies (1)

Back 6

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

Front 7

Mixed motive discrimination - remedies - Employer demonstrates disc factor irr.

Back 7

the court may grant:
a. Declaratory relief
b. Certain types of injunctive relief
c. Partial attorney’s fees
d. NO DAMAGES

Front 8

Mixed motive discrimination - remedies - Emp can't show

Back 8

Can get compensatory damages (capped at 300,000 in combination with punitive.)

Front 9

Mixed motive discrimination - remedies - Employer acted with malice or reckless indifference

Back 9

Punitive damages are available capped at 300k

Front 10

Pattern of practice of intentional discrimination (def)

Back 10

this is a type of Disparate Treatment where there is a regular practice that discriminates as opposed to a specific instance

Front 11

Partnership decisions

Back 11

Not exempt from title VII review

Front 12

Implicit Bias

Back 12

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.

Front 13

Bona Fide Occupational Qualification(BFOQ)

Back 13

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.

Front 14

Sexual Favoritism

Back 14

Not sex discrimination unless there is a pattern.
- Because it is not based on the belief that they are better workers.

Front 15

Pregnancy Discrimination Act

Back 15

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Front 16

DISPARATE IMPACT (def)

Back 16

Where there is a facially neutral employment practice that has a disparate impact on groups of individuals protected by Title VII.

Front 17

DISPARATE IMPACT Burdens

Back 17

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.

Front 18

DISPARATE IMPACT Prima Facie Case

Back 18

Must show that there is a statistical discrepancy showing that a neutral factor is causing the statistical disparity.

Front 19

DISPARATE IMPACT AND STATISTICS

Back 19

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Front 20

Discrimination Damages Types (3)

Back 20

1) Back Pay
2) Compensatory Damages
3) Punitive Damages

Front 21

Discrimination Damages Cap

Back 21

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.

Front 22

Discrimination Compensatory damages

Back 22

Include
o Damages to future employability
o Emotional distress damages: These are typically the compensatory damages. Now they are key.

Front 23

Discrimination Back Pay Damages

Back 23

- Always available
- This was not imported by CRA, and are an equitable remedy.
- Uncapped

Front 24

Discrimination Punitive damages Damages

Back 24

Only available when there is malice or reckless indifference.
- Capped at 300k combined with compensatory

Front 25

Discrimination RETALIATION (def)

Back 25

- 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.

Front 26

Discrimination RETALIATION elements

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1) Action by the employee (opposition or filing a claim)
2) Employer action

Front 27

Retaliation (employer action)

Back 27

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"

Front 28

Opposition clause

Back 28

- 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.

Front 29

PARTICIPATION clause

Back 29

- 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.

Front 30

Age discrimination:

Back 30

- 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.

Front 31

Reasonable factor other than age (RFOA)

Back 31

- 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.