Chapter 4: Employment Litigation and Dispute Resolution

Once a plaintiff has offered enough evidence to establish a prima facie case of discrimination, and the defendant employer has shown a legitimate, nondiscriminatory reason for its action, the plaintiff employee may still move for summary judgment on the ground that the reason offered by the employer was a

"pretext "

Circumstantial evidence

Admissible evidence that proves facts from which a reasonable inference or presumption can be made.

Retaliation

Adverse action taken against an applicant or employee by an employer because the person alleged, participated in, or pursued a claim of employment discrimination or other violation of the law.

Four-Fifths Rule

An EEOC guideline that holds that a selection rate for any race, sex, or ethnic group that is less than four-fifths the selection rate of the most frequently selected group will generally be regarded as evidence of adverse impact.

Business necessity

Criteria that bear a substantial relationship to the job requirements.

After-acquired evidence

Evidence provided by an employer after terminating or taking other adverse employment actions against an employee used as evidence to justify the employer's decision and possibly reduce its back-pay liability.

Most states created their own state and local enforcement agencies for employment discrimination claims. These agencies, which contract with the EEOC, are called...

706 agencies after §706 of the Civil Rights Act of 1964.

Laches

In prosecuting a claim, the unreasonable, inexcusable, and prejudicial delay that results in harm to the other party.

Legitimate business reason

A business requirement that justifies treating one or more applicants or employees differently from others.

If the court grants the motion for summary judgment, the decision may be appealed to a federal court of appeals. If the court denies the motion for summary judgment, the issue of whether the plaintiff was the victim of unlawful discrimination is disputed and must be decided at trial by a court or jury trial. On appeal, motions for summary judgment are reviewed

anew without deference to the trial court's decision.

Congress enacted the Federal Arbitration Act (FAA) in 1925. It provides that

arbitration agreements involving commerce are valid, irrevocable, and enforceable contracts, unless some exception such as fraud or duress applies

The charge of discrimination may be filed by mail or in person at the EEOC office nearest to the claimant. All laws enforced by the EEOC, except for the Equal Pay Act, require that a charge be filed with the EEOC_________ the claimant may file a lawsuit.

before

In the context of employment discrimination, a "cat's paw" situation is one where a...

biased employee, who lacks decision-making power, purposefully persuades a decision-maker to take an adverse employment action against another employee

Since plaintiffs rarely have direct evidence of the defendant's intent to discriminate against them, they must rely on

circumstantial evidence.

Seniority can be used as a defense when

collective bargaining agreements between an employer and a union require certain job actions.

Seniority may be used to

defend a disparate impact case, but seniority may never be used in cases of intentional discrimination.

disparate treatment discrimination claim requires proof of

discriminatory intent.

One way that parties provide evidence of discriminatory intent is by

employing statistical proof demonstrating decision-making bias involving racial or ethnic considerations.

A state-specific 706 agency handles cases not requiring an EEOC investigation. Known as...

exhausting administrative remedies, this process is a work-sharing arrangement between the EEOC and the state 706 agencies.

When an employer has established employee grievance procedures, the employee must follow them before

filing suit.

One of the purposes of 706 agencies is to

help filter and screen the more serious cases requiring EEOC investigation.

American discrimination laws seek to eliminate workplace injustice due to characteristics over which the individual has no control. This is known as

immutable characteristics

A mixed motive case is one in which the claim involves both

legitimate and unlawful reasons for the adverse employment decision.

Protected characteristics of individuals under these laws include

marital status, sexual orientation, tobacco and alcohol use, pregnancy, childbirth or related medical condition, mental disability, HIV/AIDS, arrest and criminal history records, and weight and personal appearance.

alternative dispute resolution include

mediation and arbitration

A defendant employer can utilize a mixed motive defense to a discrimination claim. If the plaintiff cannot prove that a prohibited discriminatory ground was a ________________, then the employer could prevail by showing that it would have taken the same adverse employment action even absent discriminatory intent

motivating factor

Class actions promote judicial efficiency because

multiple lawsuits do not have to be filed.

To make a disparate impact discrimination claim, does the complaining party need to establish proof of discriminatory intent?

no

Because of the political context of many positions in Congress and the executive branch, it is _____________ for an employer to consider applicants' political party affiliation and state of residency.

not illegal

employment discrimination

occurs when an employer distinguishes between two individuals relative to a term or condition of employment because they belong to different groups

The law seeks a balance between eliminating inherently arbitrary distinctions while

preserving those that are deemed meritorious.

Title VII covers

private employers, nonfederal public employees, and educational institutions with 15 or more employees. All federal government agencies, private and public employment agencies, labor unions, and other labor groups must comply with it as well.

To demonstrate unlawful discrimination, a claimant must establish a connection between the employment condition and a

prohibited act or practice of discrimination under which they suffered damages.

the Age Discrimination in Employment Act of 1967 (ADEA)

prohibits employment discrimination on the basis of age (40 years of age and older).

The Equal Pay Act of 1963 (EPA)

prohibits employment discrimination on the basis of gender in compensation for substantially similar work performed under similar conditions.

Genetic Information Nondiscrimination Act of 2008 (GINA)

prohibits employment discrimination on the basis of genetic information.

Americans with Disabilities Act (ADA)

prohibits employment discrimination with respect to employees and applicants with disabilities.

A party who has exhausted their administrative remedies has a limited statute of limitations in which to file suit. The filing with the Equal Employment Opportunity Commission (EEOC) is a prerequisite to filing suit; otherwise, the federal court lacks

subject-matter jurisdiction, and the case must be dismissed.

A class will not be certified if

that commonality is not found among the plaintiffs.

The key to a successful plaintiff's case for disparate treatment is to prove

the defendant's discriminatory intent, which is based upon evidence of the employer's motivation or intent in making the unfavorable or adverse employment decision.

If a charge is filed with the state 706 agency and is covered by federal law, the 706 agency "dual files" the charge with the EEOC to protect federal rights. The charge is usually retained by the 706 agency from investigation to disposition. Once the charge has been filed,

the employer is notified.

In order for the Class Action lawsuit to proceed, the court must certify a class. A class will be certified if...

the legal and factual issues of all of the plaintiffs are common to each other.

Seniority is

the length of time an employee has been employed by the employer.

The burden of proof shifts to the employer to prove a nondiscriminatory reason for its decision. If the employer offers a nondiscriminatory reason for its actions against the employee, the burden of proof shifts back to

the plaintiff to prove that the employer's reasons were just a pretext.

immutable characteristics

these include individual attributes that are not subject to change, such as race, gender, national origin and ancestry.

True or False? A person can pursue only unlawful acts of employment discrimination and not mere acts of unfairness.

True

True or False? Under the Civil Rights Act of 1991, statistical proof must be related to an identifiable, specific act within the hiring process. Parties to cases involving the use of statistics must employ statisticians as experts to interpret the data, clarify the degree of disparity, and discuss the validity of the sample size.

True

Pursuing claims in a judicial setting can be a lengthy and time-consuming process. Each party may also be embarrassed if unfavorable facts about the employment relationship are disclosed in the public forum of a courtroom. To avoid these circumstances, employers often choose to adopt one or more elements of a process known as

alternative dispute resolution

The Laches defense requires two elements:

- unreasonable delay (usually the courts require this to be a very substantial period in which the plaintiff did not monitor the EEOC investigation of the charge) and - prejudice to the defendant employer (such as unavailability of witnesses or lost evidence).

The CRA of 1991 stated the following guidelines for mixed motive employment cases:

- A plaintiff need only show by a preponderance of evidence that race, color, religion, sex, or national origin was a motivating factor in the employer's decision. This, alone, results in a finding in favor of the employee. - If the employer can show that it had a mixed motive for its employment decision, it bears the burden of proof to show that a legitimate business reason founded its decision. While the employer can prove that it would have made the same decision even apart from the discrimination, the employer can escape money damages, but may be liable for the employee's attorney's fees and injunctive relief.

The Equal Employment Opportunity Commission (EEOC) is a federal agency created by the Civil Rights Act of 1964. Since 1964, EEOC's role has expanded beyond Title VII. In the federal sector, the agency currently has responsibilities under the following nondiscrimination laws as well:

- The Equal Pay Act of 1963 (EPA) - Americans with Disabilities Act, as amended, (ADA) - Age Discrimination in Employment Act of 1967 (ADEA) - Genetic Information Nondiscrimination Act of 2008 (GINA)

Known as the Faragher/Ellerth defense under Title VII, an employer may avoid liability for harassment that does not involve an adverse employment action (a tangible employment action such as demotion or termination) if:

- It can show it took reasonable steps to prevent and promptly correct sexual harassment in the workplace; and - the victim employee unreasonably failed to take advantage of the employer's preventive or corrective measures.

A claimant may prove a case of discrimination by using one of three alternative methods:

- Meeting the four-pronged test (as set forth in McDonnell Douglas Corporation v. Green and Texas Department of Community Affairs v. Burdine) - producing "statistical evidence" of unlawful discrimination (as set forth in the Hazelwood case discussed below) or - presenting direct or circumstantial evidence of the employer's discriminatory intent in a mixed motive case (as discussed below in relation to the Desert Palace v. Costa decision)

There are strict time limits within which a charge must be filed:

- To protect the charging party's rights, a written charge must be filed with the EEOC within 180 days of the date of the alleged violation. The 180-day filing deadline is extended to 300 days if a state or local anti-discrimination law also covers the charge. For age discrimination charges covered by the Age Discrimination in Employment Act, only state laws extend the filing limit to 300 days. - These filing time limits do not apply to claims under the Equal Pay Act, because under that act, persons filing a court case do not need to file a charge with EEOC first. However, since many EPA claims also involve Title VII sex discrimination issues, claimants should file charges under both laws within the stated time limits. - Federal employees or applicants for employment are covered differently.

Federal and state laws prohibit three types of employment discrimination:

- disparate treatment - disparate impact and - retaliation

making other distinctions based on group or individual characteristics invites special scrutiny of the employer's practices. Federal law specifically prohibits discrimination in the following:

- hiring or refusals to hire - promotions and discharges - classifications of employees - referrals of workers - any act that tends to limit, segregate, or classify employees and applicants for employment in a way that deprives them of employment opportunities or adversely affects their status

To prove a prima facie case of disparate treatment, a plaintiff must prove by a preponderance of the evidence:

- membership in a protected class - application and qualification for a position for which the employer was seeking applicants - rejection despite being qualified - continued availability of the position after the rejection, with employer continuing to seek applicants with plaintiff's qualifications

Federal Arbitration Act (FAA)

A federal law upholding arbitration agreements as valid, irrevocable, and enforceable contracts, unless an exception applies.

Mediation

A form of alternative dispute resolution in which a neutral third party assists the parties in a dispute to reach a settlement.

Arbitration

A legal proceeding in which disputes are resolved by a neutral third party appointed by the parties to make a binding and final determination.

Affirmative defense

A legal rule that limits or excuses a defendant's liability because of superseding facts or a strong public policy favoring the defendant.

Bona fide occupational qualification (BFOQ)

A necessary quality or attribute that employers may consider in the selection, retention, promotion, and termination of employees.

Alternative Dispute Resolution

A nonjudicial process that seeks to resolve disputes between parties, including through mediation and arbitration.

Opt Out of a Class Action Lawsuit

A person may choose to not participate in a class action, which allows him or her the right to file an individual lawsuit against the defendant.

Lodestar Method

A two-step process to calculate attorney's fees. First, courts multiply the hours an attorney works by the attorney's hourly rate—this process yields the lodestar—and then courts adjust the lodestar up or down "to reflect the characteristics of a given case."

Mixed motive evidence

An employer's evidence showing that the same adverse decision would have been made against an employee even in the absence of the impermissible motivating factor.

Pretext

An excuse created to conceal the facts.

Direct evidence

Proof that establishes a fact by itself, without the need to infer the fact, such as an admission by wrongdoer.

Motion for summary judgment

Court determination made without a trial as to the merits of a case or specific claims based on parties' declarations of the facts made under oath.

Front pay

Damages awarded for lost earnings during the period between judgment and reinstatement or, if reinstatement does not occur, payment in place of reinstatement.

Class Action Lawsuit

Lawsuit brought by a group of plaintiffs against a common defendant arising from common legal and factual issues, making it efficient to deal with all claims together.

Tolling

Legal doctrine that allows an employer to suspend accrual of front- and back-pay liability by extending an unconditional job offer identical or substantially equivalent to that originally denied.

Prima facie

Legal principle holding that a plaintiff who proves certain facts by a preponderance of evidence is entitled to damages or other relief.

Mitigation

Legal principle requiring a plaintiff after suffering any injury or breach of contract to undertake all reasonable actions necessary to reduce the potential damages plaintiff may suffer because of the harm or breach suffered.

Right-to-sue letter

Letter issued by the EEOC or 706 agency to a complainant at the time it dismisses the charge(s) of discrimination filed by a claimant against an employer. Starts 90 days to file a federal employment discrimination lawsuit.

Statute of limitations

Maximum legal period during which a legal proceeding may be initiated, measured from date of occurrence of the event, giving rise to the right to pursue the legal claim.

Preponderance of evidence

Plaintiff's evidence establishing that the discrimination claim is more likely to be true than not.

Burden of proof

The requirement that a plaintiff must convince a judge or jury that the plaintiff is entitled to the relief sought.

Job relatedness

The specific skills, education, and training needed to perform a task.

Associational protections

Title VII protection from discrimination due to individual associations with a protected individual.

exhausting administrative remedies

this process is a work-sharing arrangement between the EEOC and the state 706 agencies.

Statistical proof is used often in the disparate __________ type of case to show intentional discrimination against a class of persons or to show that the employer's rationale for its decision was a pretext.

treatment