Ler 201 exam 3

public employers: first amendment concerns

a. Free exercise b. No establishment of religion c. Only applies to public employers d. Example: a private employer can have a 45-minute prayer session each morning as long as they let people who don't want to participate refrain. However, a public employer cannot do this

1. ADAAA: Americans with Disabilities Act Amendments Act:

a. It told the Supreme Court they got it wrong, and the statute says, to determine if someone has a disability, you do not consider the ameliorative effects of mitigating measures. In other words, consider if a person has a disability when they do not have a prosthetic leg.

Jones v. Oklahoma City Public Schools

-jones is an employee who had executive position, but when school switched super-intendants she didnt have that position anymore

failure to reasonably accommodate religion

1. If the employee establishes a prima facie case, the employer must show one of the following (burden shifts to employer): a. A reasonable accommodation was offered but not accepted; or b. No reasonable accommodation without undue hardship was available

Harassment by co-worker or 3rd party-- negligence standard

1. If the harasser is a coworker, we know there is no tangible employment action, because a coworker doesn't have the authority to do so 2. The employer knew or should have known about the harassment a. Failing to take someone's report will not cover this 3. The employer failed to take prompt and appropriate action to stop the harassment. a. Have to act reasonably b. Even if they can't find who the harasser was, if they took reasonable steps to try to investigate, they aren't liable 4. Note example: someone leaving inappropriate notes a. Took reasonable action b. Even hired police to investigate

"substantially limits"

1. Inhibits your ability to do something a. Congress felt that too many cases were being dismissed because they were having problems with establishing they have a disability

step 2

Employer must articulate a legitimate, non-discriminatory reason (a lawful motive)

types of religious conflicts 1. Religious advocacy

a. Some people feel they have an obligation to advocate for their religions b. Example: return to the example of the woman with the abortion button i. The employer provided accommodation, wearing a different button, wearing a sweater above, or only wearing it outside the office ii. She rejected these, she got fired iii. Court sided with employer - questionable iv. She wears the button so she can be in your face about it, it's her belief she has to do this to try to end the practice v. The point is to put it out there vi. Wearing a sweater hardly accommodates this belief

Harassment p.f.c

a. Harassment based on a protected class; b. tangible employment action or sufficiently severe or pervasive to alter working conditions and create a hostile work environment; c. Harassment was unwelcome d. A basis for attributing liability to the employer

examples of BFOQ

a. If there is a male clothing company, and they only want to hire male models, this is a protected characteristic because it is a qualification of the job b. French restaurant hires French chefs

disparate impact

a. unintentionally discriminates against a certain group. In the above example, there will be a lot more women screened out than men, because men are generally taller than men. It would have a different impact on men than women

actual disability

: a physical or mental impairment that substantially limits a major life activity

A. Vance v. Ball State

1. SCOTUS defined a supervisor as anyone with the authority to take a tangible employment action

Cat's paw disparate treatment

1. "If a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA." Staub v. Proctor Hosp., 131 S. Ct. 1186 (2011)(quote from syllabus). a. Example: A supervisor wants a female worker to be fired because he's sexist, so he calls Human Resources and tells them that the employee has been late three times. Without knowing that this isn't true, HR fires the female employee. 2. Disparate treatment: is intentional, employer wants to discriminate against someone on the basis of a protected class 1. Why is it called Cat's Paw? a. There is a fable with an evil monkey and a good cat, and the monkey asks the cat to give him chestnuts on a fire. The monkey says they belong to him, and the cat thinks he's helping the monkey. No one explicitly stole, the monkey didn't steal, and the cat thinks he's helping out.

undue hardship

1. "Significant difficulty or expense" in relation to the size of the company, its resources, and the nature of its operations a. Example: $3 million dollar elevator, probably undue hardship, a $5 step stool, is probably not 2. "[U]nduly costly, extensive, substantial, or disruptive or that would require fundamental alteration of the nature or operation of the business a. Whether something is an undue hardship is contextual. You have to look at the size of the company, what its resources are, and how it operates b. There is no universal dollar figure c. Gray area

disparate impact prima facie case step 1

1. A "neutral" employment requirement or practice has the effect of disproportionately limiting the employment opportunities of a protected class group (including Plaintiff); and 2. The difference in outcomes across protected class groups is large enough that it is unlikely to exist by chance. 3. Example: If a requirement is you need to be able to do 100 push-ups, on average it would screen out more women than it would men. This doesn't mean no women can do 100 push-ups and all men can, it just means on average there would be less women than men.

A. Burden shifts to the defendant/employer to show that the difference in pay is explained by one or more of the following:

1. A seniority system; 2. A merit pay system; a. Example: Walmart cashiers, man in aisle 2 paid differently than woman in aisle 3, man processes $30,000 in groceries, woman processes $5,000 and Walmart shows they pay people based on performance of how fast they check people out, this is a defense 3. A system that bases pay on the quality or quantity of production; or 4. Some other factor other than sex. 5. Sample factors other than sex a. Education b. Experience c. Training d. Shift Premiums e. Full- and Part-Time Pay Differentials i. Hard to find a comparator—this shows limitations of equal pay act—works well in many cases but is difficult in others

Bona Fide Occupational Qualification (BFOQ)

1. Allowed for National Origin and Sex 2. A work requirement reasonably necessary to the normal performance of a job, such as being a certain age or gender 3. Technically they can do the job a. Not as effective as someone else could be 4. Does not apply to race

A. Henschel v Clare Country Road Commission

1. Analysis of Prima Facie Elements 2. He has a disability - yes, he had a motorcycle accident and lost his leg a. This is an actual disability b. Limits major life activity of walking or driving 3. Was he qualified for the position before the accident? - Yes because he had the position a. He operated an excavator b. He was still able to operate the excavator after he lost his leg c. He couldn't drive a stick shift because of a CDL (Commercial Driver's License) restriction d. He couldn't drive the truck that transported the excavator from one job site to another e. Can he perform the essential functions of the job? 4. We need to determine if driving the excavator to the job site is an essential function of the job and is there some accommodation the employer can provide to allow him to still perform this function 1. This is not an essential function because: a. Job description - essentially says operates excavator and other duties as assigned i. Employer says that driving the truck is essential, but the court rejects it because if it was essential it would be listed, and because employers could say anything counts as another job function because it says "and other duties" b. Testimony from the person who had the job before him i. He said that most of the time someone else drove it, and I just showed up to operate it ii. The excavator stays at the job site for weeks, so this isn't something that comes up every day 2. Reasonable accommodation a. The employer can have someone else drive the truck b. Employer's defense could be that the accommodation would cause an undue hardship, which is unlikely in this case because a lot of people go to the site c. The employer could have accommodated him i. Court says a jury could agree, can go to trial for jury to decide ii. Employer can go to a jury trial

"regarded as a disability"

1. Based on stereotypes, fears, and misconceptions 2. Must not be transitory (<6 months) and minor 3. Does not require a reasonable accommodation (ADAAA) a. Not entitled to reasonable compensation b. Applies to minor physical and mental accommodations

disparate impact p.f.c step 3

1. Burden shifts to employer to show that the requirement is: a. A feasible alternative exists that would have less discriminatory impact b. Employer nonetheless refuses to adopt it 2. Under ADEA, employer need only show "reasonable factor other than age."

disparate impact p.f.c step 2

1. Burden shifts to employer to show that the requirement is: a. Job Related; and b. Consistent with Business Necessity 2. Under ADEA, employer need only show "reasonable factor other than age. 3. Push-up example: If this is a requirement to work as an accountant, this is not job related and consistent with business necessity. However, if your job was to load 50 lb. bags of rice on a truck, maybe push-ups are job related. 4. Difference between job-related and consistent with business a. Push-up example, push-ups measure strength, you need strength to do the job, therefore push-up test is job related. b. Is it consistent with business necessity? This is where courts look more closely between how you test for strength, and how it relates to doing the job. c. Being able to do 100 push-ups is not a good indication of whether you can repeatedly load 50 lb. bags onto a truck. d. A more related test would be lifting a 50-pound weight 100 times.

reverse discrimination

1. Characteristics you're not allowed to discriminate based on e.g. race...won't identify a specific race, no classification, just can't discriminate on basis of race 2. Example: A guy worked in Philadelphia for a news company, he was white, he got fired for using the "N" word at a work meeting, he filed a race discrimination claim. The theory of his case was his black co-workers used the "N" word and they did not get fired, he said it's reverse discrimination because he got fired for being white. It went to a jury trial. He lost.

Chattman v. Toho Tenax America

1. Chattman (employee) was disciplined 2. The decision makers (HR) didn't seem to have discriminatory intent 3. The supervisor; however, repeatedly made racist statements 4. Horseplay was pretty common in this facility 5. Chattman's supervisor only reported Chattman's horseplay, reported it up chain of commands and would have conferences with others in leadership. i. They decide to investigate earlier but employer says... 6. The supervisor calls the VP of HR and reports Chattman as a destructive individual 7. The supervisor also says that all the supervisors talked about it and decided to fire him, but in reality, there was no unanimous decision to fire him

summary judgement

1. Court looks at the evidence in the light most favorable to the non-moving party to see if evidence of a prima facie case exists. (most usually the employee = nonmoving party) 2. There may be conflicting elements, but so long as the employee has some evidence, their claim will be allowed to go forward. 3. The employer may seek summary judgement; the court doesn't say which side has better evidence? It simply says, does the employee have enough evidence to support their claim? 4. If the employer can establish as a matter of law, if you look at the evidence, the employee does not have enough evidence to establish the case, the employer wins and the case is over. 5. If the employee wins, the case isn't over, they then present their claims in a trial to a jury.

examples of disability

1. Deafness, blindness, mobility issues (wheelchair use) 2. Intellectual disability, bipolar disorder, post-traumatic stress disorder 3. HIV, cancer i. ADA in 2008 listed major life activities and what disabilities will limit them

protected classes:

1. Different classes under federal, state, and local law 2. Some protected classes are not valid considerations for employment 3. Some of these protected classes are unchangeable a. Ex. Race, color, natural origin—unchangeable (immutable) characteristics b. Other: height, weight, people under 40 4. Example: Case in Michigan, has a specific statute that prohibits discrimination against weight

EEOC v. Management Hospitality of Racine

1. Employer is a franchise owner who owns many IHOPs 2. Plaintiffs were two teenage women working at IHOP who were being sexually harassed by their older assistant male manager 3. There were inappropriate comments in every shift, and groped/slapped her 4. Walk through prima facie elements 5. First: Protected Class? a. Yes, sex 6. second: was a hostile work environment case 7. third: harrassment unwelcome? 2 part test--objectively: yes, offensive to reasonable person. subjectively? yes, reported to 3 different managers 8. employer tried to argue it wasn't subjectively offensive because of innapropriate content on myspace. --not good argument 9. fourth: basis for attributing liability to an employer? a. Was there a tangible employment action vs. hostile work environment? b. Who was the harasser? i. Hostile work environment, and harasser is a supervisor c. No tangible employment action so there is vicarious liability subject to the employer's ability to establish Affirmative Defense

step 2 (part 2)

1. Employer must articulate a legitimate, non-discriminatory reason (a lawful motive) 2. Pretext: something that covers up the real reason which is discrimination 1. Employee must provide evidence of pretext a. Disbelieve the employer's articulated legitimate reasons; or b. Believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action 2. Example: Employer claimed employee had taken a call from a politician and inappropriately made a job offer to the politician's son, which they said was inappropriate. She was fired. In a deposition, the employer didn't have any information on the offer, which makes it hard to seem like this was such a big deal to make her fired. 3. This doesn't mean the employee wins. If the employee has evidence for Step 3, the court will deny employer's motion for summary judgement, and now the employee presents information in trial for a jury.

disability accommodation

1. Employers have an obligation to reasonably accommodate employees with disabilities

reasonable accommodation pt 2

1. Ensures equality in hiring process and the benefits and privileges of employment 2. Enables employee to perform the essential functions of job a. Starbucks example: Dwarf Barista i. Barista has dwarfism, and it is a problem because he can't reach the counter or see the customers ii. Starbucks could accommodate him by giving him a stool iii. Starbucks makes the argument that iv. The stool may be unsteady, people may trip on a stool and it could pose a threat to the safety of everyone around him v. They eventually settled the case

disparate impact (adverse impact)

1. Ex. Hiring or firing decision 2. Unintentional discrimination—neutral policy has a disparate policy against a protected class a. Example: we aren't hiring women but having a strength test will disproportionately discriminate against women 3. Establish difference between protected class and unprotected class that there is no way the discrimination is coincidental 4. Burden shifts to employer a. Has to show that it is related to the job 5. Burden shifts back to employee a. They have to show there is some alternative and would have a less discriminatory impact

ameliorative effects not considered (except lenses)

1. Example: A man had one leg, which is clearly a disability because it prohibits the normal activity of walking. But, he had a prosthetic leg and was able to get along just fine, even playing sports. The ameliorative effect is the prosthetic limb took away the mitigating measures of his disability. 2. Example: In a case, two sisters applied to be airline pilots, but were denied because their eyesight was too poor. They brought discrimination claims, the employer argues they don't have a disability because if they were glasses (ameliorative effects of mitigating measures) they can see. The Supreme Court says yes. 3. Congress didn't like this. In 2008, the enacted the ADAAA: Americans with Disabilities Act Amendments Act:

A. Harassment Vicarious Liability

1. IF the employer is vicariously liable, that means: a. If illegal act(s) occurred, legal responsibility for damages is unconditionally placed with the employing organization 2. Fourth prima facie element - a basis for attributing liability to the employer a. What do you need to know? i. Was there a tangible employment action? ii. Did it create a hostile work environment? Who was the harasser

Mixed motiv

1. Idea that employee has multiple ideas for employment action 2. The reason was part of a legitimate reason and part of a discriminatory reason

Adeyeye v. Heartland Sweeteners

1. Facts a. Employee's father died, and he had to go to Nigeria for 5 weeks because his father lived there so he could participate in the burial rites b. He requested 5 weeks unpaid leave c. He said it was compulsory, he had to go and his family would face spiritual death if he didn't d. He had to sacrifice goats so death didn't visit his siblings e. He had to stay with the mother for a month in seclusion, and then it is his responsibility to get her to enter back into society after the mourning f. His religion was Christianity with a blend of cultural things from his village 2. Court doesn't look at how religions are traditionally practiced, clearly this is not what most Christians in the U.S. do when there is a family death, but that doesn't matter because these are his beliefs 3. Question as to whether it was his sincerely held religious beliefs or not a. Testimony that he said it may have been his father's belief b. But this testimony was ambiguous 4. Employer's response to his leave request a. Employer rejects the request, so he resubmits the request because he wants 3 weeks unpaid leave and one vacation time b. Employer rejects this as well - He has not suffered any adverse employment action yet c. He goes on the trip anyway - The employer fires him 5. Prima Facie Elements a. First - yes b. Second - yes, conflicted with attendance requirement c. Third - yes, he got fired d. Fourth - yes, allow him to have unpaid leave and have temp worker fill in 6. Employer's arguments a. Unable to establish either defense b. They say he did not suffer an adverse employment outcome c. "We didn't fire him because of his religious practice, we fired him because he wasn't here" i. Poor argument, he wasn't there because of his religious practice d. Undue hardship - missing an employee for 3 weeks poses undue hardship i. Poor argument, there was a high turnover rate, so often this position was open ii. They had temp workers to come in and fill in for these circumstances iii. They lost on this argument e. They tried to argue a reasonable accommodation was offered by giving him the opportunity to self-terminate and then apply for his job again if he wanted to i. This was a terrible argument ii. Court rejects this 7. Courts a. Lower court granted summary judgement for employer b. Appellate court reversed this and did not grant summary judgement and sent it back to lower court

A. Hardage v. CBS

1. Facts of case a. Hardage is a male employee who claims he was sexually harassed by his supervisor, Sparks b. There is testimony he calls her "Sparkilicious" c. They seem to have a flirtatious relationship, but he claims she sexually harassed him and things went too far d. He reported four incidents of harassment e. They went out to dinner and she inappropriately touched him, asked him about sex f. She tried to inappropriately touch him at a baseball game and he told her to stop

Hypothetical example for religion

1. Facts: a. There is a company called Geogroup that provides guards for prisons. In a case in the third circuit, they had a policy that you couldn't wear anything on your head if you were going to go into the prison as a guard. Several employees required to wear a hijab on their head because of their religious beliefs. b. This created a Title VII Religious Accommodation Claim 2. Walk through Prima Facie Elements: a. First: yes, it was a sincere religious belief conflicting with employment requirement b. Second: yes, they told their employer about it c. Third: yes, they were fired because of this d. Fourth: Was there a reasonable accommodation? Yes, employer could have made an exception to the rule 3. Employer side a. Must show they offered a reasonable accommodation OR b. They could not accommodate the practice without undue hardship 4. Possible undue hardship arguments a. Employee could hide any contraband in the hajib b. Employee could use the hajib/scarf as a weapon c. They were concerned with people concealing their identity, could hide someone else in a hijab and sneak them in/out of prison

p.f.e. hardage v CBS

1. First: Protected class? Sex 2. Second: Tangible employment action? No 3. Second: Hostile work environment? Yes a. He tries to argue it was a constructive discharge b. It's usually treated like a firing, for purposes of analyzing harassment claims, it's not considered a tangible employment action c. Court rejects this because he resigned in August, and the last incident of harassment occurred in March, nothing had happened in 5-6 months 4. Fourth: Vicarious liability? a. No tangible employment action b. Harasser was supervisor c. Employer has opportunity to establish Affirmative Defense 5. Employer responded to report? a. He reported it to HR, and the HR person said you should just do it b. Outside of that, the reporting scheme was well set up c. Hardage declines the investigation from HR and says he'll handle it himself d. This helps employer establish that the plaintiff failed to take advantage of preventative or corrective opportunities e. Also, when he reported it to HR, he only gave a partial report focusing on comments at the bar, but not the touching 6. Court says plaintiff failed to report half the facts, and didn't take any help 7. Employer successfully employed Affirmative Defense

. Harassment—Prima Facie Elements (employer responsibility)

1. Harassment based on a protected class; 2. Tangible employment action or sufficiently severe or pervasive to alter working conditions and create a hostile work environment; 3. Harassment was unwelcome; 4. A basis for attributing liability to the employer. i. even other 3 elements are proven; we have to decide if we hold the employer liable

Harassment Agency Concern

1. Harassment by a co-worker that never gets reported? a. to some extend an employer needs to know what is going on at work, however it is impossible to know every conversation that goes on 2. Harassment by a manager? a. There is a power dynamic, more difficult situation than if a co-worker. b. Employer has in some way placed this person in their position of authority, employer must choose right people to be managers and have oversight 3. Harassment by a customer? a. ex: customers would harass employee at fast food restaurant and employers never did anything. How can a manager be responsible? Goes back to what an employer has the ability to control; manager can kick customer out rather than employer. 4. Harassment by a top official? a. CEO, president i. Synonymous with the employer; president almost is always acting as the company 5. These tie back to agency

E. Gender Stereotyping (example)

1. Homosexual employee "has a high voice and walks in an effeminate manner...did not curse and was well groomed, filed his nails, crossed his legs and had a tendency to shake his foot the way a woman would sit. He also discussed things like art, music, interior design, and décor, and pushed the buttons on his nale encoder with 'pizzazz'" 2. Co-workers harassed him, called him princess and rosebud, along with anti-gay slurs 3. Placed "man-seeking man" newspaper ads with mocking commentary of his workstation 4. argument that sexual orientation is not covered by Title VII? i. look at the text, don't see sexual orientation 5.Even if he conformed to the male stereotype the determining factor was his sexual partner, how do we get passed that? i. Employer can try and say they treat men and women same regardless of sexual orientation 6. Not basing decision on title VII, basing it on these stereotypes, legislature amending statute would solve this problem, may go to supreme court

I. HARASSMENT - VICARIOUS LIABILITY

1. Hypothetical situation: Let's say two custodians clean the halls at night, one starts making inappropriate sexual comments about the other's appearance. Then the custodian inappropriately touches the other. The victim never reports, so no one knows about it. 2. Should we hold the employer liable for that? a. Yes, the employer should have a policy to have taken reasonable steps to prevent this

A. Keith v. County of Oakland

1. Keith is deaf so that would be an actual disability 2. He was certified as a life guard, he went through the interview process, and they agreed to hire him a. This suggests he was qualified 3. When he was hired he needed to take a physical, and he failed because he was deaf 4. Can he perform the essential functions of the job? a. He can't hear someone screaming or yelling, is that an essential function of the job? i. Response to this: actually, lifeguards look for visual signs, the environment is loud and people are screaming all the time, people don't scream when they drown b. Answering people's questions, is that an essential function of the job? i. Accommodation, he can use cards or get someone else to answer the question c. Whenever there is an emergency, they blow the whistles and that's how they know to jump into action i. They propose an accommodation for lifeguards to use hand signals, opening and closing their hands like a siren ii. This is not an undue hardship, it is actually a best practice that actually helps the pool be safer, because you can't always hear the whistles in the loud environments d. He cannot work the slide rotation i. Accommodation, he just won't work this rotation ii. This is not an undue hardship because people like to work the slide, and other people can take is rotation 5. Conclusion a. Lower court says employer entitled to summary judgement b. Appellate court says there is enough evidence, reverses that decision c. Keith can now proceed with his case to a jury trial d. However, this case settles instead e. County paid $25,000 i. It was so low because lifeguards don't make particularly high wages ii. He may not be able to win with a jury, because no matter what expert you put on, a parent will picture their kids screaming for help drowning, and a lifeguard not hearing them

pleading stage

1. Must allege facts, which if proven, establish a prima facie case. At this stage, no evidence or support is

interactive process

1. Need for an accommodation becomes known to employer 2. Good faith dialogue to identify reasonable accommodation(s) 3. Implement an accommodation unless it imposes an undue hardship a. Does not have to be accommodation employee suggested

Pretext

1. One of the most common types. 2. Comes up in circumstantial evidence cases, there is no proof that an employee is fired for the discriminatory reason, employer gives a legitimate reason 3. However, the employee thinks the reason was a pretext for discrimination 4. Most difficult to prove 5. Example: Employee is fired and the employer says, you're fired because your work isn't up to standards, and the employee thinks it's because of his religion.

Equal Pay act P.F. E

1. One or more persons of the opposite sex working in the same establishment (a "comparator"); 2. The comparator receives a higher rate of pay; and 3. The comparator performs work substantially equal to that performed by the plaintiff. a. Example: professors, male and female professor, may look at what classes you're teaching based on education they have, how often they teach, if they're doing research, what are the qualifications for their position, experience, notable awards, department/college, tenure b. How close of a match do you need? Since there is all this variety among professions

proximate cause examples

1. Professor Miles goes to the grocery store, and a drunk driver smashes into his car. He did something to cause the accident, if he hadn't gone to the grocery store, his car wouldn't be there to run into. But this isn't the proximate cause of the accident, the proximate cause is the drunk driver not stopping at the red light.

retaliation

1. Punishment of an employee by an employer for engaging in legally protected activity such as making a complaint of harassment or participating in workplace investigations. 2. Can include any negative job action, such as demotion, discipline, firing, salary reduction, or job or shift reassignment.

Sexual Harassment--Hostile Work Environment

1. Severe or Pervasive: a. Severe- Degree of Harm b. Pervasive—Frequency, period of time 2. Offensive and Unwelcome: a. Objective—Reasonable Person ii. Bow Tie Example: Someone compliments your bow tie and you react and can't believe they are objectifying you!? Would probably lose, reasonable person would not find this offensive. ii. Manufacturing plant example: woman worked in this plant and claimed that a supervisor had made jokes about oral sex that she found offensive. Employer wanted to introduce evidence that she wore a shirt that said "Best BJ's on the number 6 line." b. Subjective—Actual Plaintiff

A. Equal Pay Act- Sustainability Equal Four Factors

1. Skill - What one needs to know to do the job 2. Effort - Amount of physical and mental exertion 3. Responsibility - Accountability for outcomes, supervisory duties, and involvement in important decisions 4. Working Conditions - Limited inquiry into "hazards" and "surroundings" (ex. Fumes, cold weather). a. Courts don't look at this too closely

episodic

1. Test whether it meets the definition when active 2. Example: If someone is eplileptic, they are fine the vast majority of the time, except for when they have a seizure. 3. Episodic means it meets the definition of disability when they are having a seizure, when active

A. Failure to Reasonable Accommodate Religion - Prima Facie Elements

1. The existence of a sincere religious belief or practice that conflicts with an employment requirement; 2. The employer was informed of the conflicting belief or practice; 3. The employee suffered an adverse employment outcome due to adhering to the religious belief or practice; and a. Example: Someone was scheduled to work on the Sabbath, which is supposed to be a day of rest, repeatedly scheduled to work, employee comes to work, the lawsuit was thrown out because the employee didn't suffer any adverse employment action, may be an obligation to "suck it up and go to work" b. This puts employees in a tough predicament 4. A reasonable accommodation exists and the employer failed to provide one

Diaz v. Kraft Foods Global

1. This case has direct evidence of discrimination a. Doesn't need to go through the entire burden-shifted framework, they claim there is direct evidence a. Doesn't need to go through the entire burden-shifted framework, they claim there is direct evidence b. Adverse employment action: They didn't get a job that was posted at their same employer, and they claim it was because of the race c. The manager assigned only Hispanic workers to do undesired tasks and scrutinized everything they did d. They posted a sheet saying sign up here if you want to sign up for the new job, when the supervisor saw only the plaintiff's names, he took it down and said he wasn't hiring for that position e. He then posted it again to see if different people signed up, and he ended up giving them the job f. He also called a Hispanic worker a "gold digger" when she asked for a raise, and said "I'm white and I'm right" g. He said he doesn't like Spanish people and called them dummies and stupid h. Various rude comments from the manager i. Manager said he got his own job because he was white 2. Court says there is no need to complete the burden-shifted framework, because there is direct evidence that this manager discriminates on the basis of race 3. This alone is enough to defeat the employer's summary judgement motion

failure to reasonably accommodate

1. This is another type of discrimination claim 2. Prima Facie Elements a. He or she has a disability b. He or she is qualified for the position c. Employer knew or should have known about the need for an accommodation d. A reasonable accommodation exists and the employer failed to provide one

"qualified"

1. This was one of the prima facie elements of discrimination claims 2. This may be difficult for disabled workers, because they may have a disability that makes them unable to perform 3. Must meet job requirements (skill, experience, background, etc.) 4. Able to perform essential functions with or without a reasonable accommodation a. Job description lays out essential functions of job 5. Employee must not be a direct threat a. Example: if someone has a blood disability that makes it so they can't get certain vaccines, and they want to work in the hospital which requires certain vaccines. The employer can argue the person would pose a direct threat to people in the hospital because they may carry the things the hospital is trying to vaccinate against

Definition of religion

1. Title VII "...all aspects of religious observance and practice, as well as belief..." 2. DOES include atheism and agnosticism 3. Must be sincerely held (look for contradictory behavior) a. The definition is extremely broad b. It doesn't matter how many people practice it, you could be the only one who practices it and it would be covered 4. The court doesn't usually look to closely at this, because we generally don't want the government and court to interfere with religion 5. The court doesn't look to how the religion is generally practiced Example: Catholic woman wears a button with a picture of an aborted fetus and felt it was her religious duty to do so. Just because it's not something most Catholics do/isn't a common occurrence doesn't mean anything. If it is a sincerely held belief to her, that is all she needs to show.

protected classes by fed. state

1. Title VII of the Civil Rights Act of 1964 - Race, Color, Religion, National Origin, and Sex - and Pregnancy via PDA 2. IRCA - Citizenship or legal alien status 3. ADEA - Age (over 40) a. Only to the extent that they're discriminated against for being too old over 40 4. ADA - Disability 5. USERRA - Military Service 6. GINA - Genetic Information a. also prohibits gathering this information, if someone has a history of diseases in family history insurance companies may not want to take them on or companies that provide insurance may not want to hire them. 7. Why do we limit it to certain factors? a. For example: If Professor Miles tries to get a job and they say they're not hiring because he's wearing a vest, why is that okay?

A. Harassment - Easy Cases

1. Top officials: Vicarious Liability a. If you're looking at the first three elements, and you get to the fourth one, if the harasser is a top official YES there is a basis for attributing liability to the employer 2. Supervisor with Tangible Employment Action - fourth element is automatic, there is vicarious liability. The employer is automatically liable

Discussion: PA State Police Department utilizes physical fitness test for police officers

1. U.S. Department of Justice files disparate impact lawsuit a. Step 1: adverse impact on female applicants b. Step 2: The PAPD argued that it is necessary for the job i. Consistent with business necessity? i. Example: you must run an 8-minute mile 1. How do you decide the appropriate test for running ability? c. Step 3: U.S. DOJ must give a feasible alternative test, that would screen out fewer female applicants, and still test for the same level of skill

Undue hardship defense

1. Undue Hardship is a defense to an accommodation claim a. The employer does not need to provide an accommodation that poses an undue hardship b. We use the same language as when we talk about disability accommodations, but we mean different things 2. Religion: "de minimis" a. The employer does not need to accommodate if they would incur more than a de minimis (little cost) 3. Disability: "significant expense or difficulty" a. Employer needs to prove that the accommodation causes significant expense or difficulty 4. Easier to establish undue hardship for religion

Sexual Harrassment- Quid Pro Quo - support prima facie case

1. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of sexual nature: a. Submission is either explixitly or implicitly a term or condition of employment; or b. Submission or rejection is basis for employment decisions affecting individual.

A. Harassment by Supervisor without Tangible Employment Action (hostile work environment claim)

1. Vicarious Liability, BUT... 2. We give the employer the opportunity to establish Affirmative Defense a. This means the employer is saying: We're not saying the harassment didn't occur, but for legal technicality reasons, we should not be held liable 3. Faragher Ellerth Defense a. Employer exercised reasonable care to prevent and correct promptly any harassment; and b. Plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities i. Training, how to handle complaints ii. A handbook with how to report an incident i. 2 avenues of reporting, if you're reporting to a supervisor and the supervisor is the one harassing, there has to be a separate way to report harassment ii. usually an HR person iii. a disciplinary plan for those who harass after investigation 4. These are ways for courts to see if the employer exercised reasonable care for prevention 5. How might the employer establish: Plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities? a. If the employee didn't report the harassment with the clear process that was set up b. Let's say you get harassed for 9 consecutive months, and you report it in the ninth month, it's difficult to say the employer didn't address it when they didn't know about it for 8 months 6. Employer cannot keep employer confidentiality a. Makes it hard for investigation b. Have to tell details and testify to the EEOC c. Should convey to the person that they will use discretion

"major life activities"

1. Walking, standing, sitting, 2. includes the major bodily functions such as the immune system; normal cell growth; and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions a. ex: chromes disease

how to think about these claims

1. What are the prima facie elements? 2. How can the defendant rebut a prima facie case? 3. How can the plaintiff rebut the rebuttal? 4. At each step: How are the elements defined?

pattern or practice

1. Where an employee tries to show that they were denied something and gives statistic evidence from the company's past. 2. Employer shows a pattern

direct evidence (for step 1)

1. discrimination is clear, employer explicitly says the reason the adverse action occurred is because of the protected class the employee is in 2. When it is not direct, you can look at similarly situated employees who are outside of the protected class to see how they are treated, there is an inference created if the individual in the protected class is treated differently 3. If an employee does not come up with evidence of one of the above elements, their case is tossed 4. If they meet all of them, it doesn't mean they win, it means the burden is shifted to the employer, and they must come up with evidence against the claims

step 1 part 2

1. employee must provide evidence -membership in a protected class -qualified for position -suffered adverse employment action i. something that specifically impacts terms and conditions of employment (getting fired, reduction in pay -circumstances give rise to an inference of discrimination

McDonnell Douglas Burden-Shifting Framework step 1

1. employee must provide evidence: a. Membership is a protected class; b. Qualified for the position; c. Suffered an adverse employment action; and d. Circumstances give rise to an interference of discrimination (often, that similarly situated individuals outside of protected class were treated differently.)

components of disability

1. major life activities 2. substantially limits 3. episodic: test is whether it meets the definition when active 4. ameliorative effects not considered (except lenses)

exception: corrective lenses or glasses

1. you don't consider the ameliorative effects of mitigation measures, except for if someone has glasses or lenses. If you wear glasses or lenses, you do not have a disability

Geleta v. Gray

A. Geleta was the Project Director coordinator for a citywide mental health initiative for children and their families. 1. Employee told another employee he wasn't going to associate with "people of your kind" a. This probably refers to race, but we aren't sure, it could simply refer to people who aren't nice or who like to argue b. To determine what was meant, you can ask other people who were at the meeting and ask what they thought 2. Employee who the statement was made to reports to EEOC 3. Geleta is interviewed by EEOC to see what she thought of the comment 4. Geleta supported the claim of the co-worker who claimed she had been discriminated against a. This is protected activity, participating in a testimony 5. Geleta was transferred to a different department a. Had significantly narrower and less important responsibilities than his previous position 6. Why is this a materially adverse action? (Step 1) a. Loss of prestige in positions, he was still making the same money, but he used to supervise 20 employees, and now he just sits at a desk not supervising anyone b. Court says this might dissuade people from reporting 7. What is the causal connection? (Step 1) a. Temporal proximity, one month between testimony and transfer b. A few days establishes causal connection on its on c. More than a few days to a month, the courts look for more evidence to show the causal connection 8. What was the employer's non-retaliatory motive? (Step 2) a. Employer said they were trying to maintain funding for the program he oversaw, and they were engaging in realignment of the program b. Why was he able to rebut this in Step 3? i. They just ended the program, this helps him because his employer would have replaced him with someone if he did a bad job, but they never replaced him ii. If they were really realigning things to maintain funding, why did they just end the program? iii. They also told him "to make something up" when asked why his position is changed iv. The supervisor said after she heard about the testimony to fire him immediately B. The district court granted summary judgment for the District on the ground that Geleta failed to show that his transfer was a materially adverse employment action. 1. Because he had the same pay and benefits 2. But above we analyzed the appellate court that reversed the decision of the lower court

Prima facie case

A. Legally sufficient to establish a fact or a case unless disproved (usually a list of specific "elements") 1. There are things/elements you have to have evidence of to establish a claim. 2. There is a list of things you have to show to make an initial showing that you have a case.

retaliation p.f.c

A. Prima Facie Case (Step 1): Employer's initial burden 1. Employee engaged in protected activity; a. Participation: testifying in an EEOC investigation or intervening to protect others b. Opposition: reporting incidents of discrimination both internally and externally, requesting accommodations, 2. Employee was subjected to materially adverse action; and 3. Causal connection between the first two. a. How might an employee establish that the two are connected? i. Temporal proximity: there is a very short time between the two. Example: Complained about discrimination on Monday, got fired on Tuesday ii. Pattern/practice of people reporting things and getting fired iii. Direct evidence 4. Materially Adverse Action - "[T]he employer's actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination." Burlington N. & S.F. Rwy. Co. v. White (Supreme Court 2006). a. If the action permits someone not to engage in the protected activity 5. How is a materially adverse action different than an adverse employment action? a. Example: Poor evaluation alone B. Step 2 1. Burden shifts to employer: a. Legitimate (lawful), non-retaliatory motive for the adverse action C. Step 3 1. Burden shifts to employee: a. Evidence sheds doubt on the credibility of the employer's claimed motive b. Other evidence that supports the claim that retaliation is the most likely explanation for the adverse action. i. Summary: employee has to come up with some evidence to suggest the employer's reason is bogus

religious organization exemptions

A. Religious organizations absolved of any liability for discriminating on the basis of religion 1. If Catholic School only wants to hire catholic employees, they are allowed. 2. Cannot be sued for religious discrimination B. "Ministerial exception" - covers other protected classes if the position serves a spiritual function" 1. Cannot be held liable for any type of discrimination (not just religious) if it's a ministerial position that serves a spiritual function a. Example: Catholic church only hires male priests i. Clearly serving a ministerial function and spiritual function b. Example 2: Catholic church hires a cleaner for after mass - can be sued for sex discrimination because it doesn't fall under ministerial exception

I. Vehear v. Cole National Group

A. Woman programmer who is paid less than two other males—contracted by Pearl Vision Centers/ Target 1. Women and men do the same thing, write code, provide support, work on same team, same product, same supervisor a. She codes, writes the software and provides support 2. How do we know they are doing equal work? a. She wrote a significant amount of the code b. They also write the code and provide support to the retail stores 3. Employer says the men are more experienced a. She claims that she has more education b. Court agrees with her because the job posting said education would count toward your experience in this role, employer waving right to say they value experience more 4. There is testimony that it doesn't take too long to learn new coding languages 5. Employer does not establish any other reason except for sex disparity

reasonable accommodation

ADA and religion

step 3

Employee must provide evidence of pretext 1) disbelieve the employer's articulated legitimate reasons; or 2 believe that an individual's discriminatory reason was more likely than not a motivating or determinative cause of the employer's action

Harassment Discussion

What types of conduct constitute harassment? i. Inappropriate jokes/ compliments/ unwanted advancement ii. continuously pursing someone for sexual relationship iii. religion bashing b. Can men be sexually harassed? i. yes c. Is same-sex harassment a thing/viable claim? i. mixed-sex workplace and treated people differently based on their sex ii. Some difficulty, are you saying a male is discriminating against other males? ii. Show this by proving the sexual nature, content of harassment is clearly sexual E. Gender Stereotyping (example)

Gerald v. University of Puerto

Woman was a scientist for primates (monkeys) and observed them and studied them. 2. She has a supervisor, and they go to a conference and get along very well. a. Had a voluntary relationship with him at 2-week conference b. She no longer wants to continue the relationship and he does 3. There are multiple incidents, drives him back to hotel at next conference and he propositions her. a. Her young daughter is also in car b. rejects his advance 4. After she rejects them they have arguments (work related) and is contemplating terminating her position. a. raises suspicion that he wants to fire her because she turned him down—they work it out; b. at the end of a meeting after making up he gropes her breast and makes sexually suggestive grunting noises i. This would be considered high on the severity scale 5. They are going to another conference a. She has a friend visiting during the conference—he does not react well, asks if he can join if it is a female friend, and if it is a male friend he asks to watch and give tips i. also highly inappropriate 6. After last argument she is losing 800 a month bonus and is losing her position with the monkeys a. she does get a promotion though even though her position was changed 7. She complains to the chancellor with the university a. Employer notices she is experiencing harassment and they bring in an investigator b. They conclude: they do not find Dr. Gerald's testimony to be credible and dismiss her claim 8. She decides to quit and get out of it a. Was harassment based on a protected class under title VII? Yes b. can she establish a hostile work environment that is severe? i. Yes she is claiming this, shows it is severe or pervasive by how many times it occurred 1. employer tries to say it started out as a voluntary relationship and there were 3 instances in the span of 5 years—pervasive? 2. Bringing up groping incident and propositioning her in front of child, and propositioning her and her friends—enough for hostile work environment c. Also bringing up the quid pro quo claim—timing where he threatens is enough iii. Harassment was unwelcome—bad argument because she has previously engaged in inappropriate banter 1. Arguing that he has groped her and threatened her job is stronger than this argument

regarded as having a disability

a. Employer doesn't have the responsibility to provide accommodations if they don't have a record of the disability

1. Did the employees fail to take advantage of the preventative opportunities?

a. Employer says if they went to the district manager from the beginning, this would have been taken care of immediately b. Court looks at policy and says you can report to any manager, which they did 2. Employer said they had a poster in their break room that told them what to do to prevent harassment a. Court said it dealt with natural disasters, not harassment

a record of such impairment

a. Example: Cancer substantially limits normal cell growth, which is a major life activity. An individual may be cancer free right now, but they had cancer in the past. There is a record of this. If they have no cancer right now, and the employer fires them on the basis that it may come back, the employee can file a discrimination claim, even if they have no cancer in the moment.

laws that exist already --equal pay

a. FLSA sets a floor in minimum wage b. Equal Pay Act: Men and women who perform substantially equal work have to receive equal pay c. Title VII: Prohibits sex discrimination i. Disparate treatment: If the employer is motivated by the employee's sex, it is disparate treatment, protected under Title VII d. Disparate impact e. Retaliation: ensures employees can report without being retaliated against f. NLRA - protected concerted activity, employees can discuss their wages

Jones' prima facie case

a. Step 1: Did she provide evidence for all four categories? i. Protected class: age discrimination (she's over 40, protected under ADEA) ii. Qualified for the position? Yes, because she had that job for 5 years already (courts will often look at objective qualifications—if qualifications are things like good writer, they won't look into them) iii. Suffered from an adverse employment action? Yes, she was demoted and her salary was dropped $17,000, although it remained the same first year, loss in status/seniority, less vacation time iv. Inference of discrimination? She was replaced with someone significantly younger. No one else got demoted b. Step 2: Is there a legitimate non-discriminatory reason? i. Employer claims that they were reorganizing due to budget concerns and thought her position could be eliminated c. Step 3: Is there evidence of pretext? i. They didn't actually eliminate her position; they just renamed it and hired someone else ii. Person responsible for the budget says nothing came through him, and if it was because of budget concerns it would have gone through him d. The case was carried on to a trial for jury to decide e. i. usually employers can make up something-goes to employee to disbelieve it. If employee has no evidence employee loses, if they do goes to trial.

1. Palsgraff v. Long Island Railroad Co.

a. There is a guy running to get on a train, and the conductor helps the guy onto the train and lifts him on the train. The guy running was smuggling illegal fireworks; they start to explode on the train. In the process, they bump into a scale that falls and hits a woman who was waiting for a train. The idea is, was the guy helping proximate cause? i. You wouldn't expect the fireworks, but you may expect there to be some damages

employer makes case for affirmative defense

a. They said they had a policy and made employees watch a video b. Court rejects this as reasonable care to prevent harassment because they didn't have the policy in practice, it only existed on paper c. The employees reported it to three managers, and none did anything d. If there is really all of this training, why did three different managers receive reports and do nothing? e. Employer says once the district manager found out, he ended up looking into it and fired the guy This wasn't good enough because the investigation didn't start until months after they made the reports

A. Harassment- Tangible Employment Actions

a. This usually comes up in the quid pro quo harassment context b. Dr. Gerald (in previous case from last class) alleged that when she rejected supervisor's sexual advances, he demoted her c. This is a tangible employment action d. If she can establish the first three elements, the employer would be liable because you have a supervisor taking a tangible employment action

Sexual harassment policy must include

a. a reporting mechanism, repercussions, definition of harassment, something saying not to harass, report should go to HR/your supervisor. i. You need at least two avenues of reporting, can't just be one, because that one may be the harasser b. Why wouldn't you want the policy to state report it to anyone? i. It's best to report to a supervisor/manager. A manager has a responsibility to the organization, they're responsible for oversight. When these problems arise, they have an obligation to do something about it, and they have knowledge of what to do about it.

religious Harassment

second type of conflict

temporal proximity

there is a very short time between the two. Example: Complained about discrimination on Monday, got fired on Tuesday

A. Employer liability for harassment

top officials: vicarious liability for both tangible employment action and a hostile work environment supervisors: vicarious liability for tangible employment action, vicarious liability to subject to affirmative defense for hostile work environment non-supervisor/third party: N/A for tangible employment action, negligence standard for hostile work environment

disparate treatment

when an employer intentionally treats someone different