Pa Employment Discrimination

Front 1

Who is an employee? (Common Law)

Back 1

Master-servant relationship. KEY ISSUE: control by one person over the other

Front 2

Who is an employee? (Scotus factors)

Back 2

NON-EXHAUSTIVE LIST
1. Whether organization can hire and fire individual or set rules and regulations of individuals work
2. Whether and to what extent organization supervises individuals work
3. Whether individual reports to someone higher in the organization
4. Whether and to what extent individual is able to influence the organization
5. Whether individual shares in the profits, losses and liabilities of organization and
6. Whether the parties intended the individual to be an employee

Front 3

Three statutes tested (all federal no state)

Back 3

I. Title VII
II. ADEA
III. ADA 1990 (as amdended)

Front 4

Title VII

Back 4

Basics – you can’t discriminate on five protected classes:
1. Race (all race, even whites)
2. Color
3. Sex – biological sex – not gender, not sexual orientation (men can sue)
4. Religion
5. National origin – based on ancestry, not citizenship (language or accent discrimination included)

Front 5

Defendants under Title VII

Back 5

Employers of 15 or more employees
Labor Unions
Employment Agencies

Front 6

Exempted from Title VII

Back 6

Religious corporation, association, educational institution or society (they can discriminate on the basis of religion)
Private Membership clubs
Indian Tribes

Front 7

ADEA

Back 7

Statute that makes it unlawful to discriminate because of someone’s age

Front 8

Plaintiffs Under ADEA

Back 8

Limited to those who are 40 years old – the person MUST be younger than them

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Defendants

Back 9

1. Employers with more than 20 employees
2. Labor Unions
3. Employment Agency

Front 10

Exemptions

Back 10

1. States retain 11th Amendment Immunity
2. Doesn’t mean EEOC can’t sue on behalf of aggrieved employee

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ADA Defined

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No covered entity shall discriminate against qualified individual on basis of disability and is required to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability unless the employer can demonstrate that accommodation would cause undue hardship

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Plaintiff under ADA

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Qualified individual discriminated against on basis of disability

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Three Ways to be Under ADA protected class

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A. Actual present disability
B. Record of impairment
C. Regarded as having a physical or mental impairment

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Disability is defined as

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A. Mental or physical impairment
B. That substantially limits
C. A major life activity

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Qualified Individual defined as

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A. Individual with disability
B. Who with our without reasonable accommodations can perform the essential functions of the job
C. Can perform the essential functions of the job

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Defendants

Back 16

Employers who have 15 employees

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Exemptions

Back 17

11th amendment immunity – states again

Front 18

Filing a charge with PA Human Relations Commission

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1. Must file charge within 180 days
2. Must be made under oath
3. Will be considered a charge if it is a request for agency to take remedial action (once you can sue – you can only sue on what’s on the charge – can’t bring it up)

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File Charge with EEOC

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Must file charge within 300 days of alleged unlawful employment practice, or within 30 days after receiving notice that PHRC has terminated proceedings (whichever is earlier) – Normal rule is 180 days, but since PA has an agency, it’s extended

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PHRC and EEOC

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Have work sharing agreement. Plaintiff may file with one agency and indicate that he wants to cross file. You don’t need to file with both but you MUST file with HRC if Fed. Law doesn’t cover the claim

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When does unlawful employment practice occur? Discrete Acts

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Time of the discriminatory discrete acct – not upon the time at which consequence of action became most painful

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When does unlawful employment practice occur? Notice of Decision Rule

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Notice of the employer’s decision to take an adverse employment action such as projected termination, starts the filing period

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When does unlawful employment practice occur? Paychecks

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Lily Ledbetter Fair Pay act – each new paycheck awarding discriminatory pay is a new act of discrimination which starts the time period running anew

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When does unlawful employment practice occur? Hostile environment

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Will not be time barred as long as
1. All acts which constitute the claim are part of the same lawful employment practice and
2. At least one act falls within the statutory time period

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Obtain Right-To-Sue Letter

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I. Charging party may demand the suit letter once 180 days from filing charge have passed
II. Charging party may elect to permit the agency’s procedures to continue after the 180 day period but retains power to demand right to sue letter at any time
III. Charging party may permit agency to process the charge to conclusion
1. Agency will either
a. Find no reasonable cause to believe violation has occurred and issue notice of dismissal or
b. Find reasonable cause, attempt conciliation and if it fails to resolve the matter and the agency does not file suit itself, ultimately issue right to sue letter
IV. BUT A plaintiff filing under ADEA may file in court without right to sue letter

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File Suit in State or Federal Court

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Charging party must file suit within 90 days of receipt of notice of dismissal of the suit letter

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Review – the steps of bringing a suit

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1. File charge with PHRC (180 days) or EEOC (300 days or 30 days after PHRC dismisses, whichever is earlier)
2. Get right to sue letter or notice of dismissal – 180 days
3. File in Court – 90 days

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Five types of Employment Discrimination Claims

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I. Individual Disparate Treatment
II. Systemic Disparate Treatment
III. Disparate Treatment
IV. Harassment
V. Retaliation

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Individual Disparate Treatment (Defined)

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Employer treats an individual differently than others because of a prohibited characteristic

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Individual Disparate Treatment (Must Show…)

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Intent. May be shown through two different frameworks
1. Single Motive
2. Mixed Motive

Front 31

Proving a Single Motive Case

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McDonnel Douglas Test.
1. Establish Prima Facie Case – if established, presumption of discrimination is created
2. Burden then shifts to employer to show nondiscriminatory reason – if employer meets burden, presumption of discrimination dropped
3. Then Burden shifts back to P to show PRETEXT

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1. Establish a Prima Facie Case

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Must prove by preponderance
I. Membership in protected class (minimal qualification)
II. Qualified for position in question (if employed, performing job at adequate level)
III. Applied for open position (doesn’t apply to termination)
IV. Adverse employment action (transfer can be adverse but is tricky)
V. Position remained open or was filled by someone outside of protected class)
Once established – presumption of discrimination created (if employer remains silent – P wins, but employer never remains silent)

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2. Burden Shifts to employer

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a. Employer has to show a legitimate, non-discriminatory reason for the employment action
b. Burden of production (not proof)
c. Valid reasons – could be anything – legitimate is a bit of misnomer. Could be you don’t like dogs, or you were fired for another discriminatory reason
If burden met, presumption of discrimination is dropped

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3. Burden Shifts back to P to show pretext

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I. P must prove that LNDR is not the real reason behind employment action
II. P must prove the real reason was discrimination and the discrimination was the determinative factor in the decision
III. Showing the LNDR was false does not compel judgment as a matter of law
IV. But showing prima facie case plus showing that LNDR was false might be enough to persuade a fact finder that intentional discrimination was the reason for employment action
V. Showing by P beyond proving that LNDR is false is not required as a matter of law (in order to survive summary judgment motion)

Front 35

Mixed Motive Case

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Case wherein the employment action as taken due to both permissible and impermissible motives. Involves lower causation standard – because of statutes and SCOTUS each statute gets its own framework

Front 36

Title VII Mixed Motive Case

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A. Unlawful action is established when P established that impermissible reason was a MOTIVATING FACTOR in the decision (703(m))
B. Same decision defense: D then has the opportunity to demonstrate by preponderance that it would have made same decision in absence of impermissible reason
C. Limits Remedies – if D proves this – he gets declaratory relief, atty’s fees, and costs. But if no damages, reinstatement, hiring, or promotion
D. P need not have direct evidence to use this framework

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ADA Mixed Motive Case (Price Waterhouse Framework – Third Circuit)

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A. Generally courts have direct evidence than an impermissible reason was a motivating factor
B. Employer may avoid liability by proving by preponderance that it would have made same decision absent impermissible reason

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ADEA Mixed Motive Framework

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Not available

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Systemic Disparate Treatment Discrimination

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Available when employer discriminates against entire class

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Systemic Disparate Treatment Discrimination

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Must show
1. Formal Policy of Discrimination or
2. Pattern or practice of Discrimination

Front 41

Formal Policies of Discrimination

Back 41

Plaintiff Must Prove employer has facially discriminatory policy
E.g. Only women must be waitresses at hooters
E.g A-a employees must contribute more life insurance than other employees

Front 42

Formal Policy of Discrimination – D’s Statutory Defenses

Back 42

A. Bona Fide Occupational Qualification (BFOQ)
B. Bona Fide Seniority System
C. Bona Fide Employee Benefit Plan (only available under ADEA)

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BFOQ

Back 43

(defined) Not unlawful for employer to take action otherwise prohibited where age, sex, religion, national origin is a bona fide occupational qualification reasonably necessary to the normal operation of particular business (race is not listed)

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BFOQ (How to Prove)

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D must show
1. Qualification is reasonably necessary to normal operation of business
2. Religion, sex, nat’l origin or age is a proxy for the qualification by showing either
a. There is reasonable cause to believe that all or substantially all of the persons in class are unable to perform safely and efficiently duties of the job or
b. Some employees in the class possess a trait precluding safe and efficient job performance and it is practically impossible for the employer to deal with class employees on individual basis

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Pattern Or Practice of Discrimination (P’s Prima Facie Case)

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1. Usually though stats. Comparison groups must be correct in
I. Space
II. Skill (does the job require a particular license)
Can also be shown through
2. Anecdotal Evidence
3. Historical evidence

Front 46

Pattern or Practice of Discrimination (D’s Rebuttal)

Back 46

1. Challenge factual basis of P’s prima facie case (you used the wrong numbers)
2. Challenge the inference of discriminatory intent raised by statistics (yes there’s a discrepancy, but there’s a reason for it)
3. Assert statutory defense (BFOQ – would turn it into facial claim)
4. Avoidance of Disparate Impact Liability as defense (employer may engage in disparate treatment to avoid disparate impact liability only when employer has strong basis in evidence it will be subject to disparate impact liability if it fails to take the action)

Front 47

Voluntary Affirmative Action – Lawful?

Back 47

Yes , under Title VII. Can’t be done out of fear of suit. Has to be when there is actual disparate impact;

Front 48

Voluntary Affirmative Action – Weber Test

Back 48

Private, voluntary race conscious affirmative action plans must
1. Aim to remedy a manifest imbalance
2. In traditionally segregated job categories
3. Cannot unduly trammel rights of disfavored groups

Front 49

Voluntary Affirmative Action - How litigation would proceed

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I. P proves elements needed for prima facie case of systemic disparate treatment
II. D produces LNDR of voluntary A-A plan
III. P must prove A-A plan does not meet Weber Test

Front 50

Systemic Disparate Impact Discrimination (DEFINED)

Back 50

An employer’s facially neutral policies, regardless of intent, adversely affect a protected class more than others and cannot be adequately justified (no need to show intent);

Front 51

Systemic Disparate Impact Prima Facie Case

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P Must Prove

1. Membership in protected class
2. Particular employment practice (P has the burden to identify said practice that causes impact – if P can’t tell which practice or employer doesn’t keep records – P can use “bottom line” to keep prima facie case)
3. Causation – must be a causal link between practice used by employer and resulting impact
4. Disproportionate Impact – P must prove practice causes disparate impact (4/5 rule EEOC – when protected group pass rate on test is less than 80% of non-protected pass rate – evidence of adverse impact)
Practice may be challenged when it is ADOPTED as well as IMPLEMENTED

Front 52

Systemic Disparate Impact Discrimination – D’s Rebuttal

Back 52

1. Challenge P’s Prima Facie Case
2. Business Necessity and Job Relatedness
3. 703(h) exceptions, which are:
a. Professionally Developed Tests
b. Bona Fide Seniority Systems – allow for different compensation, terms and c’s of employment for different groups of employees, even if it perpetuates discrimination
c. Bona Fide Merit and Piecework Systems – quantity and quality-based compensation permitted
4. In an ADEA claim – employer may defend by proving decision was based on reasonable factors other than age

Front 53

Systemic Disparate Impact Claim – P’s Response to D’s Rebuttal

Back 53

1. P may show that there is alternative employment practice which achieves the employer’s goals but does not have the discriminatory impact
Alternative Employment Practices Are:
One that serves same purpose as contested practice
But that is not discriminatory
And is reasonable to expect the other employer to use (COST is no option)

Front 54

Harassment

Back 54

If an employment terms or conditions of employment are altered due to her sex, race, or disability status, she has a claim for harassment. Two types
1. Quid Pro Quo
2. Hostile Work Environment

Front 55

Quid Pro Quo

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I. When sexual conduct is a condition of tangible employment benefits, including salary, promotion and continued employment
II. No formal defenses
III. If P proves her claim employer is vicariously liable (must be in SUPERVISORY ROLE)

Front 56

Hostile Work Environment

Back 56

P must prove
I. Membership in a protected class
II. Conduct was because of membership in the protected class (can be same sex, but can’t be discriminatory solely based on sexual orientation s that is not in title VII)
III. Unwelcome or offensive (applies only to those based on sex)
IV. Conduct is Severe or Pervasive – could be a single incident, but if so it’s usually physical

Front 57

Hostile Work Environment – Severe and Pervasive

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Factors to Consider
I. Severity of the Discriminatory Conduct
II. Frequency of the Discriminatory Conduct
III. Whether the Conduct is physically threatening or humiliating
IV. Whether it unreasonably interferes with your work performance

Front 58

Hostile Work Environment– Employer Liability – Supervisors

Back 58

Employer is held vicariously liable but the employer has a two part affirmative defense. Employer will not be liable if it can prove:
I. Reasonable care to prevent and promptly correct harassment
II. Employee unreasonably failed to use reporting procedure created by Employer
III. BOP on employer

Front 59

Hostile Work Environment– Employer Liability – Co-Workers

Back 59

Employer will be held liable under negligence standard if P can prove
I. Employer knew or should have known about harassment and
II. Employer failed to take prompt remedial action
III. Burden on Plaintiff

Front 60

Retaliation (DEFINED)

Back 60

Employees may not be retaliated against for exercising the rights under the anti-discrimination statutes

Front 61

Retaliation - P’s Prima Facie Case

Back 61

1. P engaged in statutorily protected expression (Opposition Conduct and Participation Conduct)
2. Employer was aware of conduct
3. P Suffered adverse employment action (need not be directly related to P’s employment, may include harm reached outside of workplace, BUT must be materially adverse – meaning would dissuade a reasonable worker from making or supporting charge of discrimination)
4. Causal connection between statutorily protected expression and employment action
NOTE: Applies even if fiancé is fired for something you did, fiancé can bring Title VII retaliation

Front 62

Retaliation – D’s Rebuttal

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Burden shifts to D to articulate some legit, nondiscriminatory reason for adverse employment action
1. If P engaged in unreasonable opposition you can be fired even if you have a valid claim
2. Loyalty alone isn’t enough
3. If he carries his burden – moves to P to show that D’s reason was pretextual

Front 63

Pregnancy

Back 63

Pregnancy Act is an Addendum to Title VII. Two clauses
I. Basically, pregnancy, childbirth, or related medical conditions added into title VII (third circuit includes abortion) (Not an ADA claim, however, because it is not permanent disability)
II. Pregnancy and Related conditions may not be treated less favorably than other medical conditions (yet firing a pregnant woman who requires numerous sick days is NOT a violation if other employees who require numerous sick days are also fired)

Front 64

Grooming and Dress Codes

Back 64

Title VII Issue
A. Sex specific grooming and dress codes do not violate Title VII (ex. Women may have long hair but men must have short hair, men may not wear make up or jewelry)
B. However sex specific grooming or dress codes which impose unequal burden on sex are unlawful (ex. male employees wear suits while women wear makeup, or women have to wear makeup)

Front 65

Sexual Orientation

Back 65

Title VII Issue
I. Not protected under Title VII
II. Yet under Price Waterhouse discrimination on basis of stereotypes is unlawful

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Religion

Back 66

Title VII
Duty to Accommodate:
Employer must accommodate religious practices and observances of its employees unless an employer demonstrates he is unable to do so without undue hardship

Front 67

Reasonable Religious Accommodations Under Title VII

Back 67

1. Reasonable accommodation is reasonable as long as it allows the employee to engage in her observance or practice – need not select employee’s proposed accommodation
2. Once RA is offered – don’t consider undue hardship – employer does not need to prove that each of the employee’s consideration would result in an undue hardship – only consider it if no reasonable accommodation has been offered
UNDUE HARDSHIP is anything more than a de minimus cost on the employer, economic or non economic

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ADEA Statutory Defenses

Back 68

Language of the ADEA provides two unique statutory defenses
I. Good Cause
II. Reasonable Factors other than age (when raised in response to disparate impact claim employer has burden of proving the defense of reasonable factors other than age)

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ADEA Bona Fide Executive Exception

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Mandatory Retirement is prohibited by the ADEA. There is an exception for the “bona fide executives” who may be mandatorily retired at age 65

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ADEA Public Safety Officers Exception

Back 70

Public safety officers may be subject to mandatory retirement and or not hired due to age

Front 71

ADEA Bona Fide Employee Benefit Plans

Back 71

Prohibits discrimination in terms, conditions or privileges of employment which encompass all employee benefits, including those pursuant to a bona fide employee benefit plan
Exception: Lower benefits for older workers are permitted where, for each benefit or benefit package, actual amount of payment made or cost incurred on behalf of an older worker is no less than that made or incurred on behalf of a younger worker

Front 72

ADEA Early Retirement Incentive Plans

Back 72

ADEA permits a benefit plan that is a voluntary early retirement incentive plan

Front 73

ADEA Mandatory Arbitration

Back 73

Mandatory arbitration is not a violation of the ADEA if there is an inclusion in the collective bargaining agreement to arbitrate ADEA claims

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ADA Amendments

Back 74

Meant to broaden them – focused on protected class to a much greater extent than the other two statues

Front 75

To claim protection under ADA

Back 75

P must be a QUALIFIED INDIVIDUAL discriminated on the basis of DISABILITY, that is P must be a qualified individual who can perform the essential functions of the jon WITH OR WITHOUT reasonable accommodation

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Actual Present Disability

Back 76

Physical or mental impairment substantially limits one or more of the MAJOR LIFE ACTIVITIESof an individual

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Physical or Mental Impairment

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A. Physiological Disorder or Condition
B. Cosmetic Disfigurement
C. Anatomical loss

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Mental or Psychological Disorder

Back 78

Does not include physical characteristics like weight and height and eye color within the normal range

Front 79

What Constitutes a Major Life Activities?

Back 79

I. Including but are not limited to seeing, hearing, speaking, breathing, lifting, bending, standing, communication, caring for one’s self and performing manual labor working
II. Added in amendments – AND major bodily function – e.g. produce insulin, bodies ability to clean blood supply

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Substantially Limits

Back 80

1. If it substantially limits the ability of an individual to perform a major life activity compared to most people in the general population
2. New definition states limitation need not severely impact major life activity and language should be construe in favor of broad coverage
3. Impairment need substantially limit only one major lfie activity to be considered a disability
4. An impairment which is episodic or in remission is a disability if it would substantially limit a major life activity when active
5. Must consider the limitation without coercive measures (consider whether P is able to work without corrective medication EXCEPT for glasses and contacts)

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Record of Such Disability

Back 81

Treated by a doctor?

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Regarded as disabled

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Being regarded as having an impairment if she establishes she has been subjected to action prohibited under the act because of an actual or perceived impairment if she establishes that she has been subject to action prohibited under this act because of an actual or perceived impairment – whether or not impairment limits is perceived to limit a major life activity
Congress recently made clear that this part of definition includes those who lose employment opportunities because of employee reactions to the impairments

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Qualified Individual

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One who with or without reasonable accommodation can perform essential function of the employment position that such individual holds or desires

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Qualified Individual – What are essential job functions?

Back 84

I. Employers job description is accorded deference in determining what counts as an essential function
II. Regularly and timely attendance at work is an essential job function

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Qualified Individual - Reasonable Accommodation

Back 85

Employee may be able to perform essential functions and be qualified once they have provided reasonable accommodation. May include
a. Making existing facilities accessible and usable by individuals with disabilities
b. Job restructuring
c. Part-time or modified work schedules
d. Reassignment to a vacant position
e. Renders, interprets, aids
f. Software
We can consider cost
Not normally reasonable accommodation to take responsibility and give it to someone else
In addition to claims above, failure to provide reasonable accommodation is a separate cognizable claim

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Defenses available to Reasonable Accommodation Claim

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1. Employer may defend by articulating LNDR for action – in other words it was not motivated by disability
2. Undue Hardship – not able to provide reasonable accommodation without undue hardship – requires significant difficult or expense (as oppose to de minimum) – consider size and financial resources of employer – P has burden of proving reasonable accommodation but D may prove undue hardship
3. Direct threat – employee may require individual shall not pose a direct threat to health and safety of others in workplace – cannot be eliminated by reasonable accommodation (must be determined by objective medical judgment)
4. Job related and consistent with business necessity – may justify standards that screen out or otherwise deny a job or benefit to someone with a disability as long as standards are job related and consistent with business necessity and performance cannot be accomplished by reasonable accommodation (e.g. having a drivers licenses)

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Drug and Alcohol Users

Back 87

Under the ADA – current drug users are excluded – but the ADA does protect alcoholics and drug addicts from discrimination on the basis of their alcoholism or drug addiction

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Current Drug Use Defined

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Under ADA currently means drug use was recent enough to justify employer’s reasonable belief that drug abuse remained ongoing problem

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Medical Examination and Inquiries (Pre-employment medical examinations and inquiries)

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May inquire into applicants ability to the job and may condition offer on results of medical examination (but can’t be one about general health)
Provided that all entering employees are subject to medical exam and results are confidential

Front 90

Testing for Illegal Drugs?

Back 90

Not considered a medical exam
For current employees – can’t unless job related or consistent with business necessity
Results are confidential

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Remedies (Goal)

Back 91

To make P’s whole

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Two types of remedies

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Legal Remedies
Equitable remedies

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Limitations on Evidence

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After acquired evidence (No front pay, no reinstatement) – only part of remedies that’s ever been tested
Same decision Defense (employer would have made same decision under Title VII – No damages)

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Legal Remedies are limited to claims of

Back 94

intentional discrimination

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Caps under Title VII

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1. 15-100 emps: 50k
2. 101-200 emps: 100k
3. 201-500 Emps: 200k
4. Over 501: 300k

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Compensatory damages

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Awarded for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, other nonpecuniary losses

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Punitive Damages

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Limited to cases where employer engaged in intentional discrimination and has done so with malice or reckless indifference to federally protected rights of aggrieved individual

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Liquidated Damages

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ADEA allows recovery of these
Only unpaid wages or amount equal to unpaid wages
Only willful violations –employer should have known whether conduct was prohibited

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Equitable Relief

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Types
1. Reinstate and Retroactive Seniority (Seniority Lost to Discrimination)
2. Affirmative Action Relief – Class wide, race conscious for systematic discrimination that requires employer to take specified action that benefits discriminated class
3. Backpay
4. Front pay
5. Attorneys fees

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Backpay

Back 100

All compensation P would have received without discrimination
a. Lost wages-raises, overtime bonuses, vacation pay – benefits
b. Begins on day P first lost wages
c. 2-year limit
d. Ends date of judgment or when employee rejected reinstatement offer
e. Can be mitigated – must be reduced by amounts earned or could have been earned with reasonable diligence

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Front Pay

Back 101

Substitute for reinstatement – compensates economic losses that will occur after court’s judgment
1. Award covers time period from date of judgment until date employee obtains wrongfully denied position
2. If no reinstatement front pay is amount which estimates total future salary and benefits P would have earned (reduced by amounts P could have earned with reasonable diligence – e.g. mitigated)

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Atty’s Fees

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Each statute provides for recovery of Atty’s fees and costs to prevailing parties
a. Prevailing party – must be awarded some relief by court as opposed to simply spurring D to change
b. Fees may be awarded to both P’s and D’s

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Remedies Subject to Cap

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Compensatory
Punitive
Liquidated (ADEA)

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Remedies Not Subject to Cap

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Back pay
Front Pay
Atty’s Fees
Dec. and Inj. Relief