Employment Discrimination - Pa. Bar

What are the elements of quid pro quo harassment?

1. A supervisor 2. Makes sexual advances to a subordinate, and 3. the Plaintiff either submits or suffers an adverse employment action as a result of refusal

What liability specific defenses to defendants in employment discrimination cases have?

1. After acquired evidence; 2. The same-decision defense in mixed motive Title VII cases (same defense goes to liability in ADA cases).

What conditions does ADA Title I place on pre-employment medical exams and inquiries?

An employer (1) may inquire into the applicant's ability to do the job and (2) may condition offer of employment on the results of a medical examination, provided that all entering employees are subject to a medical exam and the results are confidential.

What is not a legitimate, non-discriminatory reason the employer can offer to rebut a prima facie case of pregnancy discrimination?

An employer cannot justify its actions on the ground that accommodating pregnancy is more expensive than accommodating similar conditions of non-pregnant employees.

Does an individual have a disability when the condition is episodic or in remission?

An impairment which is episodic or in remission is a disability if it would substantially limit a major life activity when active.

What is not a physical or mental impairment?

Any physical characteristics within normal range, common personality traits, current illegal drug use (past illegal drug use is covered).

What are the two types of causation in individual disparate treatment cases?

But for/prextext and mixed motive

How are mixed motive claims proved?

By either direct or circumstantial evidence. If circumstantial evidence is used, will be similar to evidence in step 1 McDonnell Douglas. Direct evidence is more common in ADA cases.

What are the major life activities?

Caring for one's self, Performing manual tasks, and major bodily system functions

What are the significant differences between disparate treatment claims based on religion and other disparate treatment claims under Title VII?

1. Depending on the circumstances of the case, the plaintiff may need to prove he or she informed the defendant of his or her religion (probably in cases where the plaintiff's religion would not otherwise have been evident); 2. In the case of religious practice that conflicts with a work rule, an employer's legitimate, non-discriminatory reasons include a claim that accommodating the religious practice would be an undue burden (anything more than a de minimis cost).

In what ways does Title VII apply to gender identity discrimination?

1. In the 2020 Bostock decision, the Supreme Court held that Title VII's prohibition on sex discrimination also prohibited discrimination on the basis of sexual orientation and gender identity; 2. The Supreme Court has also held that sex discrimination occurs when an employee suffers an adverse action because they do not meet the social norms of their gender.

What kinds of equitable relief are available under the employment discrimination acts?

1. Instatement (hiring), reinstatement, and retroactive seniority increases; 2. Affirmative action relief in systemic cases; 3. Backpay 4. Front pay 5. Attorneys' fees

What are the exceptions to the notice rule for timing of a violation?

1. Pay discrimination - under a 2009 amendment, each new paycheck with discriminatory pay constitutes a separate occurrence. 2. Hostile environment - when the charge is hostile environment harassment, a charge is timely whenever all acts form part of one violation and at least one act falls within the statutory time period.

What are the prima facie elements of McDonnell Douglas in Title VII and ADEA cases?

1. Plaintiff is a member of protected class 2. Plaintiff was qualified for position 3. Plaintiff applied for open position (only if claim is failure to hire/promote) 4. Plaintiff suffered an adverse employment action 5. Position remained open or was filled by someone outside protected class (or younger in ADEA claims)

What are the prima facie elements of McDonnell Douglas in ADA Title I claims?

1. Plaintiff is a qualified individual with a disability 2. Plaintiff suffered an adverse employment action (No need to show position stayed open or was filled by non-disabled person)

What are the two types of harassment in employment law and which types of discrimination can they apply in?

1. Quid pro quo harassment (sex discrimination only) 2. Hostile environment (any protected characteristic)

What are the statutory exceptions to covered employers under Title VII?

1. Religious organizations can discriminate choose to hire only employees of their religious faith; 2. Private membership clubs; and 3. Indian tribes.

How is backpay calculated under the employment discrimination acts?

1. The earliest possible date backpay can begin is the first date the plaintiff lost wages. 2. The last possible date for which backpay can be awarded is the date of judgment or the day the plaintiff rejects an offer of reinstatement, whichever is earlier. 3. From the end date, the backpay period can only go back two years. 4. Backpay awards are subject to the duty to mitigate - they are reduced by amounts earned and that could have been earned with reasonable diligence during the backpay period.

What factors are relevant to whether conduct was severe or pervasive?

1. The outrageous nature of the conduct (how severe) 2. The frequency of the conduct 3. Whether the conduct was physically threatening or humiliating 4. Whether the conduct interfered with work performance

What are the elements of a prima facie face of religion failure to accommodate claims under Title VII?

1. The plaintiff holds a sincere religious belief that conflicts with a job requirement; 2. The plaintiff informed the employer of the conflict; 3. The plaintiff was subsequently disciplined for failing to comply with the job requirement.

What are the elements of a prima facie retaliation claim under the employment discrimination laws?

1. The plaintiff was engaged in protected conduct 2. The defendant took an adverse action against the plaintiff which would deter the protected conduct, and 3. There is a causal connection between the protected conduct and adverse action (usually requires defendant knowledge of the protected conduct).

How does the defendant prove a bona fide occupational qualification (BFOQ)?

1. The qualification is reasonably necessary to the normal operation of the particular business (necessary for business, not necessarily for protection of worker); 2. The trait is a proxy for the qualification because either a. all or most of the persons with the trait are unable to meet the qualification OR b. some employees have the trait and it is practically impossible to distinguish those who do and don't

What additional, unique defenses do ADA Title I defendants have that defendants in other employment discrimination cases don't?

1. Undue hardship - an individual is not qualified if accommodating them would be an undue hardship (substantial difficulty or expense); 2. Direct threat - an employer may require that an individual shall not pose a direct threat to health or safety of others in the workplace (a direct threat is a significant risk, as determined by objective medical judgment, that cannot be reasonably accommodated).

How long does the victim have to file a charge of discrimination with the PHRC?

180 days.

What is a substantial impairment?

A condition is a disability if it substantially limits the major life activity *in comparison to the general population.*

Are corrective measures (e.g., medication) relevant to determining whether a condition substantially limits a major life activity?

Corrective measures are not considered in assessing whether a condition is substantially limiting, unless the corrective measures are glasses/contact lenses.

How are compensatory and punitive damages for Title VII violations capped?

Damages for violations of Title VII are capped by a schedule based on number of employees (e.g., damages against smallest category, 15-100, capped at $50,000). Note that equitable remedies that involve monetary payments are not capped.

What are the two methods of proving structural disparate treatment?

Facially discriminatory policy and pattern or practice.

What is the McDonnell Douglas test?

First, the plaintiff must demonstrate a prima facie case of discrimination (differs slightly among cases). Second, the defendant must produce (but not prove) a legitimate, non-discriminatory reason (LNDR). Third, the plaintiff must rebut the LNDR (e.g., showing that the LNDR does not explain the adverse action). If the plaintiff produces some evidence rebutting the LNDR, case goes to the jury.

What are the burdens for a pattern or practice structural disparate treatment claim?

First, the plaintiff must establish a prima facie case, through detailed and relevant statistical (e.g., must choose correct geographical area and comparative population), anecdotal, and historical evidence that a pattern of discrimination is widespread in multiple aspects of the defendant's operations. If a prima facie case, the defendant must rebut the case or offer one or more affirmative defenses.

Which employment discrimination acts do not abrogate state sovereign immunity, and what remedies do they provide to state employees.

For violations of ADEA and ADA Title I, state employees can only obtain prospective injunctive relief against responsible state officials.

What is front pay?

Front pay is an equitable remedy designed to compensate for the losses the plaintiff occurs by virtue of discrimination until he or she is able to find a new position or retire (a substitute for reinstatement).

How is front pay calculated?

Front pay is estimated to provide the plaintiff with the total future salary and benefits he or she would have earned. There is no strict time limit on front pay. However, front pay awards must be reduced by amounts plaintiff could earn with reasonable diligence (e.g., compensating plaintiff for difference between what could have been earned at prior job and what can be earned now after setback).

Does a victim usually need to file a complaint with both PHRC and EEOC?

No, the two agencies have a work sharing agreement. When filing with one, simply indicate you wish to cross file. However, if the victim has a claim that violates only state law, that charge must be filed directly with PHRC.

Are sex-specific grooming and dress codes violations of Title VII?

No, unless they burden one sex more than the other (e.g., a light burden on male employees and a high burden on female employees).

Are mixed motive claims available for retaliation?

No.

When does the unlawful employment practice occur?

Normally, it occurs when the victim receives notice of the adverse action.

When are legal remedies (i.e., damages) available to plaintiffs in employment discrimination actions?

Only when the plaintiff succeeds on an intentional discrimination claim (no damages in disparate impact cases).

What are the two kinds of protected conduct under the employment discrimination laws?

Opposition and participation

How long does the victim have to file a charge of discrimination with the EEOC?

Ordinarily, a victim has 180 days. However, since PA its own state commission, the EEOC will accept a filing within 300 days or 30 days after PHRC provides notice that it is dismissing a proceeding, whichever is sooner.

What is participation conduct?

Participation by the employee in a formal complaint structure of EEOC, state agency, or employer.

What is a disability under the ADA?

Physical or mental impairment substantially limits one or more of the major life activities of an individual.

When are punitive damages available for employment discrimination claims?

Punitive damages are available when defendant engaged in intentional discrimination (prerequisite for any damages) AND did so with malice or with reckless indifference to legal rights.

What is the protected class under Title I of the ADA?

Qualified individuals discriminated against on the basis of disability (contains multiple sub-definitions).

What classes are protected under Title VII?

Race, color, national origin (ancestry, not citizenship), sex, and religion.

What type of medical exam is not regulated by the ADA?

Testing for illegal drug use.

Under which Act is a mixed motive individual claim not available?

The Age Discrimination in Employment Act

What is a sufficient disparate impact for the purpose of a disparate impact claim?

The EEOC suggests that a disparate impact exists when the protected group can satisfy the policy at a rate less than 80% of the non-protected group (4/5ths rule).

What is the constitutional exception to the employment discrimination laws?

The Free Exercise Clause has been interpreted to prohibit the application of the antidiscrimination laws (in any way) to religious organizations with respect to their employees who have significant roles in propagating the religion - e.g., ministers, parochial school teachers (the ministerial exception).

What is the most common method to prove but for/pretext individual discrimination claims?

The circumstantial burden-shifting McDonnell Douglas test.

When may attorneys' fees be awarded in an employment discrimination case?

The court may award attorneys' fees to any prevailing party, plaintiff or defendant. A party is a prevailing party when they are actually awarded some relief by court order (doesn't have to be on the merits); favorable settlement is not enough (Buckhannon rule).

What defenses are available to a defendant in a structural disparate treatment lawsuit?

The defendant can either 1) rebut the factual bases of the claim or the inferences of discrimination drawn from the facts, or 2) establish one or more of the following affirmative defenses: a. the trait discriminated against (other than race) is a BFOQ; b. the discrimination is necessary because the employer has strong evidence that it could be liable for disparate impact without the discrimination; or c. voluntary affirmative action meeting the Weber requirements

What are the defenses to a claim of quid pro quo harassment?

The defendant can only negate the claim; there are no affirmative defenses. If the claim is proved, the defendant is vicariously liable for the actions of its supervisor.

What are the defendant's defenses in a disparate impact claim?

The defendant may either rebut the prima facie case or may rely on one or more of the statutory defenses: 1. Business necessity (policy must measure minimal qualifications for job and reasonably accurately predict ability to perform) (or, in ADEA, "reasonable factors other than age") 2. Impact resulted from professionally prepared test 3. Impact resulted from bona fide seniority system 4. Impact resulted from bona fide merit/piecework system - pay based on reasonable assessments of quality/quantity is permissible

If an employer has a facially discriminatory policy, what is the employer's defense to a structural disparate treatment claim?

The employer can prove a bona fide occupational qualification (BFOQ) (not available for race discrimination).

What is an essential job function for the purpose of ADA Title I?

The employer has a great deal of latitude in determining essential job functions. Regular and timely attendance is an essential function.

Once an employee in a religion failure to accommodate claim under Title VII establishes a prima facie case, what must the employer do?

The employer must prove (different than the normal production of a LNDR in most disparate treatment Title VII cases) one of the two following conditions: 1. A good faith effort to reasonably accommodate the employee (need not be the employee's proposed accommodation); or 2. Any accommodation would be an undue hardship (in this context, anything more than a de minimis cost).

In a disparate impact claim, what can the plaintiff do once the defendant asserts a defense?

The plaintiff can attempt to prove that another reasonable policy would serve the employer's stated goals without the disparate impact.

What are the elements of a hostile environment claim?

The plaintiff must prove 1. he is a member of a protected class 2. he was the recipient of conduct as a result of his membership 3. the conduct, if based on sex, was unwelcome 4. the conduct was pervasive or severe

What elements must a defendant demonstrate for the voluntary affirmative action defense?

The plan must 1. Aim to remedy a manifest racial imbalance 2. In traditionally segregated occupations, and 3. Not unduly trammel the rights of groups disfavored under the plan (examples: existing white workers should not be discharged or demoted, plan should focus on increasing minority participation more gradually and naturally) (Plaintiff can rebut the defendant's proof)

If the plaintiff establishes a prima facie case of retaliation, what happens next?

The retaliation claim is governed by a process very much like McDonnell-Douglas. The employer must articulate a legitimate, non-discriminatory reason (LNDR) for its action, then the plaintiff must demonstrate pretext.

Once a charge is filed, what can the victim do next?

The victim can either get a right to sue letter after 180 days, or can wait for the agency process to finish and then sue. The victim must sue within 90 days of receiving the right to sue or notice that the agency is dismissing the charge.

How does Title VII as amended protect pregnant women from discrimination?

Title VII defines "sex" to include conditions of pregnancy, childbirth, and related medical conditions and requires employers to treat pregnant women equal to non-pregnant employees who have similar abilities to work.

What are the three tested discrimination laws?

Title VII of the Civil Rights Act, Title I of the Americans with Disabilities Act, and the Age Discrimination in Employment Act

Which employment discrimination act validly abrogates state sovereign immunity?

Title VII, under the Fourteenth Amendment.

What are the elements of a structural disparate impact claim?

To make a prima facie case of disparate impact, the plaintiff must: 1. demonstrate membership in a protected class 2. identify a particular employment policy, and 3. show a disproportionate impact on the protected class which is 4. caused by the policy

Under which act can an employee received liquidated damages?

Under the ADEA, an employee can receive liquidated damages (an amount equal to unpaid wages in addition to any other award of unpaid wages) for violations that would also merit punitive damages.

What entities other than employers are covered by Title VII and ADEA, but not ADA?

Unions and employment agencies.

What distinguishes religious discrimination claims under Title VII from most other Title VII claims?

Unlike most other Title VII claims (but like the Pregnancy Discrimination Act), religious discrimination claims under Title VII cover failure to accommodate.

In individual disparate treatment claims under Title VII where the plaintiff claims she has been replaced, the replacement needs to be outside the protected class to which the plaintiff belongs. How is ADEA different?

When an ADEA plaintiff pleads replacement, it is adequate that the replacement is younger than the plaintiff, even if the replacement is also in the protected class.

When is the safety of third parties and co-workers a BFOQ?

When keeping co-workers or third parties safe is directly part of the job. For instance, keeping co-workers and prisoners safe is a BFOQ for prison guards. In most cases, safety of others is not a BFOQ.

When is an individual considered to have a disability?

When they 1) have a present disability as defined by ADA, 2) have a past record of such a disability, or 3) are perceived as having such a disability.

Does the court have jurisdiction over claims not charged with the agency?

Yes, but it must dismiss those other claims if the defendant objects.

Is cost relevant in determining whether an accommodation is reasonable under ADA Title I?

Yes, but unlike in the religious discrimination context under Title VII, the cost can be higher than de minimis without being unreasonable (undue hardship in this context means substantial difficulty or expense).

Can an employer in a retaliation case reference the employee's conduct as a legitimate, non-discriminatory reason for an adverse action?

Yes, in limited circumstances. Unreasonable opposition conduct (such as the blocked roads in McDonnell Douglas) is a LNDR. Participation conduct is much more protected.

Do any of the employment discrimination laws protect pregnancy?

Yes, the Pregnancy Discrimination Act of 1978 amended Title VII to protect pregnancy.

Are voluntary race-conscious affirmative actions plans permissible under Title VII?

Yes, under USW v. Weber (1979). Note that any state or local government affirmative action plan would be reviewed under strict scrutiny and be presumably invalid under EPC. Equal Protection principle of 5A would probably mandate the same for federal gov't.

If the family member of an employee is subject to adverse action as a result of the employee's protected conduct, does that family member have his own cause of action?

Yes. Although the adverse action is aimed at deterring the employee, not the family member, the family member also has a cause of action.

Who is a qualified individual for ADA Title I purposes?

ADA Title I defines a qualified individual as one "who, With or without, reasonable accommodations can perform the essential functions of the employment position that such individual holds or desires."

What is the difference between individual/structural disparate treatment and structural disparate impact claims?

Disparate treatment claims require proving intent, usually though not always through circumstantial evidence. Disparate impact does not require intent to discriminate.

What are the general case theories of employment discrimination?

Disparate treatment, structural disparate treatment, disparate impact, harassment, and retaliation

What is opposition conduct?

Employee conduct explicitly challenging, opposing, questioning an employment practice by the employer that the employee reasonably believes is unlawful. Employee need not be the initiator (e.g., statements in response to employer questions are protected).

What is the protected class of the ADEA?

Employees over 40 years of age.

What restrictions does ADA Title I place on medical inquiries and exams for current employees?

Employers are prohibited from requiring medical examinations and inquiries of employees, unless such examination or inquiry is job related and consistent with business necessity. The results of such examinations or inquiries are confidential.

Which employers are covered by Title VII?

Employers with fifteen employees or more, and state and local governments.

What employers are covered by the ADA?

Employers with fifteen or more employees.

What employers are covered by ADEA?

Employers with twenty employees or more, state and local governments.

What are the elements of a prima facie case for pregnancy discrimination under Title VII?

I. Employee was in protected class; 2. Employee sought accommodation; 3. Employer refused accommodation; 4. Employer offered similar accommodations to non-pregnant employees who had similar abilities to work.

What is the "bottom line" exception to the disparate impact plaintiff's need to identify a particular employment policy?

If the employer/defendant does not maintain records allowing the plaintiff to determine which policy causes a disparate impact, the plaintiff may use overall statistical evidence.

What defenses are available if the person creating a hostile environment is not a supervisor?

If the plaintiff proves a hostile work environment created by a non-supervisor, the plaintiff must also prove the defendant's negligence: if the defendant knew or should have known of the harassment and did not take any remedial action, the defendant is liable.

What defenses are available if the person creating a hostile environment is a supervisor?

If the plaintiff proves a hostile work environment, the defendant is vicariously liable for the acts of its supervisor unless 1) it used reasonable care to prevent and correct the behavior and 2) the plaintiff failed to use the defendant's reporting procedures

In a mixed motive claim, the employer responds to the prima facie case by admitting that the decision was partially motivated by an unlawful reason, but attempting to prove that the decision would have been made anyway. If the employer's case is accepted, what happens next?

In Title VII, this defense concedes liability but limits remedies - relief cannot include damages, reinstatement, hiring, or promotion. In ADA, this is a complete defense to liability. (Stems from the Price Waterhouse decision, which Congress overruled for Title VII but not ADA.)