Employment Law - Chapter 3 Discrimination

What are the protected classes? (or some of them)

- Tittle VII (color, race, religion, sex, national origin) -Age (ADEA) -Disability ( ADA) -Pregnancy (PDA) -Veteran (USERRA) -Genetics ( GINA)

elements of retaliation claims:

- plaintiff was engaged in a protected activity (participation or opposition) -plaintiff was subjected to materially adverse action -there is a casual link between in the protected activity and the loss or limitation of employment opportunity

elements of disparate impact claim: plaintiff burden of proof

- plaintiff, is a member of a protected class where a "neutral" employment practice/policy has the effect of disproportionately impact the employment opportunities. - the difference in outcome across protected classes is large enough that it is unlikely to be by chance

Defense under title VII

-Bona Fide Occupation Qualifications (prison guards in mx sec.) -Practice is job -related and consistent with business necesity (credit score -women)

Theories used for title VII and other discrimination Lawsuits

-Disparate treatment: intentional, unequal treatment -Disparate Impact: Facially neutral policy has discriminatory impact -Retaliation: to take adverse actions based on employee's exercise of legal rights

remedies under title VII

-back pay of up to two years -front pay for earning a claimant could have received if not for the illegal discrimination -reinstatement -seniority -retroactive seniority -injunctive relief -compensatory damages attoerney fees

types of disparate treatment cases

-direct evidence -facially discriminatory policy or practice -reverse discrimination -pretex -mixed motive - pattern or practice -harassment

elements of disparate treatment claim: Plaintiff burden of proof

-plaintiff is a member of a protected class. -plaintiff applied and was qualified for the job. -plaintiff was denied the job. - employers continue to consider candidates for the job, or selected someone with contrasting characteristics of the plaintiff's protected class.

JUDICIAL REVIEW

1. Courts must give the EEOC cases "de novo review" (complete new look) - many employers are now using arbitration agreements which are not subjected to judicial reviews - Jury trials are permitted at the request of either party when compensatory and punitive damages are sought

Bringing a claim to the EEOC

1. EEOC schedules a meeting with the parties 2. parties meet and try to mediate 3. if agreement is reached then claim ends. 4. If not agreement is reached the claim is investigated by agency. 5. agency will make determination of cause and no cause 6. IF no cause - employee is notified and given a "right to sue" letter (90 days to file a civil lawsuit in federal district court after receiving letter" 7. IF cause - agency notifies employer of proposed remedy 8. if employer disagrees, he/she appeals decision to next agency level.

who is covered?

1. Public and private employees of all levels and types of employment

who is not covered?

1. employees of employers who have less than 15 employees. 2. employees whose employers are not engaged in interstate commerce

Who must comply with the discrimination rules?

1. employers engaged in interstate commerce 2. If companies have 15 or more employees each working day. 3. work 20 or more working weeks in current or preceding calendar year. 4. Companies that work to hire people for other companies are also not allowed to discriminate.

What does EEOC stand for?

Equal employment opportunity commission

What is discrimination?

discrimination is the limitation or denial of employment opportunities based on a protected class of characteristics

Affirmative action

executive order 1124 -affirmative action is required of (1) companies that have contacts to sell goods or services to the federal government (2) an employer when a discrimination suit results in a settlement or court order that includes affirmative action as a remedy.

Disparate treatment

similar employees that are treated differently because of prohibit factors. BFOQ (bona Fide occupational qualification) - intentional discrimination is reasonably necessary to employer;s business.

Disparate impact

when a workplace policy appears neutral but discriminates or has an adverse impact on a protected group. - many screening devices have disparate impact -pre-employment interviews and applications may be basis for claims