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31 Cards in this Set

  • Front
  • Back
Disparate Treatment (def)
This type of discrimination is when practices constitute deliberate differential or disparate treatment.
Disparate Treatment - Burdens of Proof
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.
Disparate Treatment Prima Facie Case (4)
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
Mixed motive discrimination (def)
(PWC v. Hopkins):
This is where there are legitimate and discriminatory reasons for an employer’s actions.
Mixed motive discrimination Showing
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.
Mixed motive discrimination Levels of remedies (1)
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
Mixed motive discrimination - remedies - Employer demonstrates disc factor irr.
the court may grant:
a. Declaratory relief
b. Certain types of injunctive relief
c. Partial attorney’s fees
Mixed motive discrimination - remedies - Emp can't show
Can get compensatory damages (capped at 300,000 in combination with punitive.)
Mixed motive discrimination - remedies - Employer acted with malice or reckless indifference
Punitive damages are available capped at 300k
Pattern of practice of intentional discrimination (def)
this is a type of Disparate Treatment where there is a regular practice that discriminates as opposed to a specific instance
Partnership decisions
Not exempt from title VII review
Implicit Bias
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.
Bona Fide Occupational Qualification(BFOQ)
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.
Sexual Favoritism
Not sex discrimination unless there is a pattern.
- Because it is not based on the belief that they are better workers.
Pregnancy Discrimination Act
Where there is a facially neutral employment practice that has a disparate impact on groups of individuals protected by Title VII.
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.
Must show that there is a statistical discrepancy showing that a neutral factor is causing the statistical disparity.
Discrimination Damages Types (3)
1) Back Pay
2) Compensatory Damages
3) Punitive Damages
Discrimination Damages Cap
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.
Discrimination Compensatory damages
o Damages to future employability
o Emotional distress damages: These are typically the compensatory damages. Now they are key.
Discrimination Back Pay Damages
- Always available
- This was not imported by CRA, and are an equitable remedy.
- Uncapped
Discrimination Punitive damages Damages
Only available when there is malice or reckless indifference.
- Capped at 300k combined with compensatory
Discrimination RETALIATION (def)
- 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.
Discrimination RETALIATION elements
1) Action by the employee (opposition or filing a claim)
2) Employer action
Retaliation (employer action)
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"
Opposition clause
- 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.
- 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.
Age discrimination:
- 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.
Reasonable factor other than age (RFOA)
- 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.