MGMT 430 Exam 1 TAMU

Four-Fifths Rule

"back of the envelope rule" that finds evidence of discrimination if an organization's hiring rate for a minority group is less than 80% (4/5) the hiring rate for the majority group --> plaintiffs' protected class pass rate/others' pass rate

Factors considered when deciding whether to award Punitive Damages...

- whether the employer knows of the anti-discrimination laws it is violating - whether the discriminators acted with managerial authority - whether the employer failed to adequately implement its own anti-discrimination policies - whether the employer failed to act in good faith in enforcing its anti-discrimination policies

Justice O'Connor Concurring Opinion

--> in order to shift the burden of proof to the defendant, a disparate treatment plaintiff must show by DIRECT EVIDENCE that the illegitimate criterion was a substantial factor in the decision --> stray remarks cannot justify requiring the employer to prove that its hiring or promotion decisions were based on legitimate criteria

EEOC Determination Options...

1. AGREE and FILE LAWSUIT on plaintiffs behalf 2. AGREE and NOT FILE LAWSUIT but give NOTICE OF RIGHT TO SUE 3. May find INSUFFICIENT EVIDENCE to establish discrimination and give her a NOTICE OF RIGHT TO SUE 4. Plaintiff may SAY NO NEED TO GO FURTHER, just give me my NOTICE OF RIGHT TO SUE

Stray Remarks Test (5th Circuit)

1. Related to the protected class in which plaintiff is a member 2. Made at a time in proximate to the employment decision at issue 3. Made by an individual with authority over the employment decision at issue; and 4. Related to the employment decision at issue

Problems with use of Statistical Evidence

1. Sample is too small or otherwise incomplete 2. Statistical proof may be derived from inadequate statistical models 3. Even assuming that a plaintiff demonstrates a statistically significant probability that a given outcome is not due to chance, such a showing is insufficient by itself to prove that unlawful discrimination is the cause

Government Basis for "Pattern or Practice"

1. Statistical Evidence 2. Previous Discrimination 3. Individual Examples of Discrimination 4. Subjective Hiring Practices

Before a person can file a lawsuit under Title VII, that person must first file a charge of discrimination with the Equal Employment Opportunity Commission.

TRUE

Direct evidence of discrimination is the surest way to prove a case under Title VII.

TRUE

Everyone is a member of multiple protected classes.

TRUE

If an employer has both a male and a female applicant, it may legally make distinctions based of each individual's qualifications, intelligence, past experience, and/or mechanical dexterity.

TRUE

_________ holds that a __________ that has a ______________ constitutes ______________ unless ______________.

Disparate Impact Theory; facially neutral employment practice; substantial adverse effect on the employment opportunities of members of a protected class; unlawful employment discrimination; justified by business necessity

Calculate How Many Standard Deviations...

Disparity/(One SD) --> Disparity = Expected - Actual

Disparity equals...

Expected Results-Actual Results

According to the court in EEOC v. CMS (which you should have previously read), dreadlocks were considered an "immutable characteristic" of one's race.

FALSE

If a plaintiff is unsuccessful at trial at the U.S. District Court, they can get a new jury trial at the applicable Court of Appeals.

FALSE

In a single-motive employment discrimination case, if a plaintiff proves his/her prima facie case, the burden of proof then shifts to the defendant to prove its legitimate, non-discriminatory business reason.

FALSE

The doctrine of "intersectionality" refers to the unique form of discrimination that individuals may experience as a result of their membership in two or more protected classes.

TRUE

Title VII of the Civil Rights Act of 1964 prohibits discrimination because of sex, whether one is a male or female.

TRUE

Adverse Employment Actions Include...

1. When the employee's compensation, benefits, or other financial terms of employment are diminished, including termination; 2. Where a nominally lateral transfer, without a change in financial terms, significantly reduces the employee's career prospects by preventing them from using the skills in which they are trained and experience; and 3. Where the employer does not move the employee to a different job or alter the skill requirements of the job, but changes the working conditions in a way that subjects the employee to humiliating, degrading, unsafe, unhealthful, or significantly negative alteration in the workplace environment

How far back can one's back pay damages extend?

2 years prior to the filing of the EEOC charge

What is the EEOC filing deadline after the alleged unlawful employment practice?

300

How many days after being given a NRTS can an employee file a lawsuit?

90

Title VII of the Civil Rights Act of 1964 prohibits unlawful employment practices because of one's race, color, religion, age, national origin, and sex

FALSE

Plurality Decision

If a majority of the justices agree as to the outcome of a case but not as to the reasoning for reaching the outcome

One Standard Deviation equals...

SQRT((n)(p)(q)) - total sample population - percentage of option (A) - percentage of option (B)

Issue of Fact

argument between the two parties regarding the events which took place and caused the lawsuit to arise

Lack of Interest Defense

assume after looking at the relevant labor market, there is a statistically significant disparity in race or sex for a specific employment role

Statistical Evidence

attempt to draw valid conclusions from incomplete data

Prima Facie Case

case in which the plaintiff has produced sufficient evidence of his or her claim that the case will be decided for the plaintiff unless the defendant produces evidence to rebut it

Demographic Statistics

compares the percentage of workers in the "protected" category at issue in the employer's workforce with the percentage of qualified members from that same protected category in the relevant labor market

Back Pay

compensation for past economic losses (lost wages and fringe benefits) caused by an employer's discriminatory employment practices, such as limiting promotion opportunities for older workers --> no monetary cap --> limit is TWO YEARS PRIOR to the FILING OF THE EEOC CHARGE which initiated the case --> period ends at the time of settlement or judgment

General Building Contractors Association v. Pennsylvania Case

concluded that 42 USC 1981 can only be violated by intentional discrimination

Williams v. Wells Fargo Bank Case

concluded that even if the Wells Fargo policy of terminating and not hiring Section 19 violators creates a disparate impact, the bank's compliance with the statute's command is a business necessity under Title VII --> said the appellants provided "insufficient evidence or statistics" showing that providing notice of a waiver would have reduced disparate impact, especially for people of color

Compensatory Damages under Title VII

consists of the emotional distress a plaintiff suffers due to an employer's discriminatory treatment; value depends on the severity of the employer's actions

Defendant's Primary Response (Statistical Evidence)

defendant wants to show that plaintiff's statistical case is deficient, inaccurate or does not provide statistically significant evidence

Single Motive Case

either a lawful motive or an unlawful motive, but not both, is the reason for the challenged employment action; CHOICES ARE BINARY

Final Stage of the McDonnell Douglas Test

employee must prove that the reason the employer has given was false or a pretext for discrimination

Content-Based Validation Study

employer designs a test that is intended to replicate the job

St. Mary's Honor Center v. Hicks Case

even if the plaintiff discredits an employer's explanation (a.k.a. provides pretext), the employer can still win if the trier of fact concludes there was no discriminatory intent

Direct Evidence

evidence that (if true) proves an alleged fact, such as an eyewitness account of a crime

Generally, the _______ the number of standard deviations that separate the observed from the predicted result, the more likely it is the result of _______

fewer; chance

Writ of Certiorari

formal writ used to bring a case before the Supreme Court

If ________ than _______ standard deviations, then something other than _______ occurred.

greater; 2; chance

En Banc Hearing

hearing in an appellate court in which all or a substantial number of the judges assigned to that court participate

Equal Employment Opportunity Commission (EEOC)

investigate and mediate claims brought by employees, enforcing the Civil Rights Act of 1964 (Title VII)

It is easier to find statistical significance in ________ samples rather than ________ samples

large; small

Americans with Disabilities Act (ADA)

legislation passed in 1990 that prohibits discrimination against people with disabilities; under this Act, discrimination against a disabled person is illegal in employment, transportation, public accommodations, communications and government activities

Stare Decisis

let the decision stand; decisions are based on precedents from previous cases

Griggs v. Duke Power Co. Case

made it possible for employees to challenge employment practices that disadvantage certain groups if the employer cannot show the policy is justified by a business necessity, paving the way for the Civil Rights Act of 1991

Genetic Information Nondiscrimination Act (GINA)

makes it illegal to discriminate or retaliate against employees or applicants because of genetic information, which includes family medical history

Statistical Significance

measures the probability that a disparity between what actually occurred and what we would expect is due to chance

Title VII requires that employees ________ their ________

mitigate; back pay damages

Price Waterhouse V. Hopkins

once a plaintiff in a Title VII case shows that gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving that it would have made the same decision even if it had not allowed gender to play such a role --> legitimate reason, standing alone, would have induced it to make the same decision --> defendant has to prove case beyond the preponderance of the evidence

Motion for Summary Judgment

one party asked the court to examine the depositions, the affidavits, and the documentary information and determine whether there is any material fact issue that needs to be decided by a jury

Civil Rights Act of 1964

outlawed major forms of discrimination on the basis of race, color, national origin, religion, and sex

Burden of Production

party's obligation to come forward with sufficient evidence to support a particular proposition of fact

St. Francis College v. Al-Khazraji (1987)

plaintiff argued that defendant "denied him tenure because of his Arabian race...", violating 42 U.S.C. 1981, and somebody else did get tenure - U.S. Supreme Court 1987

Class Action Cases

plaintiff in a case seeks to represent a class of individuals who share the same protected class status as the named plaintiff; evidence typically takes the form of statistics

Title VII of the Civil Rights Act

prohibits employers from discrimintating against an individual on the basis of race, color, national origin, sex, or religion with respect to hiring, discharge, compensation, promotion, classification, training, apprenticeship, referral for employment, or other terms, conditions, and privileges of employment - applies to public and private employers with 15 or more employees - does NOT protect independent contractors

Pretext-Maybe

prove that the employer's reasons were pretext, and then let the jury decide if the employer discriminated against the plaintiff (Supreme Court Majority)

Pretext-Only

prove that the employer's reasons were pretext, and you win (Court of Appeals/Dissent)

Pretext-Plus

prove the employer's reasons were pretext, and then the plaintiff still had to present some additional pretext (District Court)

Equal Pay Act

provides for equal pay for equal work performed by employees of either sex working in the same establishment; prohibits discrimination on the basis of sex with respect to wages paid for equal work on jobs that require equal skill, effort, and responsibility, and that are performed under similar working conditions

42 U.S.C. Section 1981

provides that all persons shall have the same right to make and enforce contracts as Caucasian citizens; applies to ALL aspects of contractual relationships - originally enacted as section 1 of the Civil Rights Act of 1866 - applies to private employers as well

42 U.S.C. Section 1983

provides that individuals who deprive others of their civil rights may be sued and held personally liable for the harm caused by such deprivation - originally enacted as the Civil Rights Act of 1871

Equitable Relief in Title VII

relief which puts the plaintiff into the economic position he/she would have been in had the discrimination not occurred --> includes back pay, front pay, or an order requiring the employer to place the employee in the job position he was denied due to discrimination

Stray Remarks Doctrine

remarks that while offensive do not rise to the level of direct evidence of unlawful animus or intent

Burden of Persuasion

requisite degree of belief a party must convince a jury that a particular proposition of fact is true

Criterion-Related Study

seeks to demonstrate a statistical correlation between the selection procedure and job performance

Validation Study

seeks to demonstrate the utility of an employer's selection procedure

Hazelwood School District v. United States Case

solidified the decision that statistics could play a leading role in showing a prima facie case of discrimination under Title VII, BUT the statistics must be used with great care - District Court--> percentage of African American students to African American teachers - Court of Appeals--> African Americans to the general labor market (CITY WIDE) - Supreme Court--> qualified applicant pool

Regression Analysis

statistical model designed to estimate the effect of several independent variables on a single dependent variable in order to determine whether the employee's membership in a protected category was a factor considered in decision-making

McDonnel Douglas Test

the PLAINTIFF has the initial burden of establishing a prima facie case of disparate treatment; must produce either direct or circumstantial evidence of the employer's motivation

Griggs v. Duke Power Co. was...

the first Title VII case of substance decided by the Supreme Court

Attorney's Fees are based on...

the number of hours the plaintiff's attorney spent on the case and the prevailing hourly rates for attorneys of equivalent experience in the geographical area

Burden of Proof

the obligation to present evidence to support one's claim

If the practice is consistent with business necessity, then can...

the plaintiff prove that an ALTERNATIVE BUSINESS PRACTICE EXISTS that would have a LESS DISCRIMINATORY EFFECT --> if YES, PLAINTIFF WINS --> if NO, EMPLOYER WINS

In a mixed-motive case for disparate treatment, if the employer can prove that it would have made the same employment decision even if it lacked a discriminatory motive, can the plaintiff be awarded any relief?

YES; ONLY a declaratory judgment and attorney's fees

Can attorney's fees be awarded to a prevailing defendant?

YES; ONLY in cases where the plaintiff's case is clearly frivolous

Can attorney's fees be awarded to a prevailing plaintiff even in cases in which no other monetary damages are awarded?

YES; cases that only result in declaratory relief, or cases in which an employer successfully asserts a "mixed motives" defense

Disparate Impact Theory

a facially neutral employment practice that has a substantial adverse effect on the employment opportunities of members of a protected class constitutes unlawful employment discrimination unless justified by a business necessity

Adverse Impact Theory

a standard or procedure which disproportionately, but unintentionally excludes a higher proportion of one group than another in hiring process --> employer's motivation in establishing the particular employment practice is IRRELEVANT

Front Pay

accounts for the time it will take the plaintiff to find a new job, along with the pay disparity the plaintiff will suffer due to the expected career setback of starting with a new employer --> included wages, commissions, employee benefits etc.

Age Discrimination in Employment Act (ADEA)

act that prohibits discrimination in employment for persons age 40 and over

A back pay award will be reduced by the amount of the employee's __________ during the relevant period or the _______________ with ____________

actual earnings; amount the employee could have earned; reasonable diligence

Civil Rights Act of 1991

allowed for compensatory and punitive damages as well as jury trials under Title VII and the ADA; amended Title VII, 42 U.S.C. Section 1981, the ADA, and the ADEA - overturned seven U.S. Supreme Court decisions making it more difficult for plaintiffs to prevail in employment discrimination cases

Pattern-or-Practice Cases

an employer has engaged in a pattern of intentional discrimination; sometimes referred to as "systemic discrimination"

Statistical Evidence is ALWAYS...

Circumstantial Evidence

Total Award of Compensatory AND Punitive Damages COMBINED

- 15-100 employees - $50,000 - 101-200 employees - $100,000 - 201-500 employees - $200,000 - 501 or more employees - $300,000

Judge Martin in EEOC v. CMS...

- defined an immutable trait as "...something beyond the victim's power to control..." or alter - contradicts herself in quoting "...dreadlocks are a manner of wearing of wearing hair that is common for black people and suitable for black hair texture." --> DOES NOT support the claim that dreadlocks are naturally occurring

Secondary Stage of the McDonnell Douglas Test

- employer may rebut the plaintiff's case by showing that the plaintiff was not treated differently from other employees - if employee was treated differently, the employer may articulate the reasons for the different treatment were LEGITIMATE AND NONDISCRIMINATORY

Title VII...

- employer must have at least 15 employees - has five protected classes - plaintiff must file charge with EEOC - caps on compensatory and punitive damages - its own statute of limitations

The relevant labor market must include BOTH...

- geographic area from which the employer draws its employees, AND - the population in that area which has the qualifications for the at-issue jobs

EEOC Guidelines on Employer Screening Past Convictions

- nature of the crime - time elapsed since the criminal conduct occurred, and - nature of the specific job in question

42 USC Section 1981...

- no minimum number of employees - applies only to race and ancestry cases - no administrative filing requirement - no caps on compensatory and punitive damages - different statute of limitations -

"Reverse" Race Discrimination

- there really is no such claim - Title VII prohibits discrimination because of race - it DOES NOT matter the race of the individual if he/she can establish discrimination

Steps to establish a Prima Face case (McDonnell Douglas)...

1. Plaintiff was a member of a protected class 2. They applied for and were qualified for the job for which the employer was seeking applicants or performing the job properly 3. They suffered an adverse employment decision; and 4. Individuals not in the protected class did not suffer the same adverse employment decision

Several Appellate Courts agree that Title VII also protects employees from discrimination resulting from their...

Association with persons of a different race

EEOC v. CMS

Chasity Jones, an employee with Catastrophe Management Solutions, had her employment offer rescinded when asked to remove her dreadlocks; CMS does not hire anyone with "excessive hairstyle", regardless of color - Dismissed at District Court - 11th Circuit Court of Appeals affirmed dismissal, noting that although dreadlocks are "culturally associated with race", they are not "an immutable characteristic of black persons."

Who has the burden of proof in a mixed-motive case?

Defendant

What is the job/task of the Court of Appeals?

Determine whether the law was correctly applied by the trial court

Who has the burden of proof to show that the plaintiff did not adequately mitigate their damages?

Employer

What can plaintiffs recover in disparate impact cases?

Equitable Relief and Attorney's Fees

Circumstantial Evidence

INDIRECT; evidence used to imply a fact but not prove it directly

Prima Face for Disparate Impact

MUST DEMONSTRATE 1. An identifiable, facially neutral personnel policy or practice 2. A disparate effect on members of a protected class; AND 3. A causal connection between the two

Do mixed motive cases "work" under Section 1981?

NO

Does Section 1981 permit employees bringing "disparate impact" claims?

NO--> ONLY INTENTIONAL DISCRIMINATION

Is the employer's motivation in establishing the particular employment practice relevant?

No

McDonnell Douglas Corp. v. Green Case

PRIMA FACE CASE

In a Single Motive Case, who has the burden of proof?

Plaintiff

What are the five protected classes?

Race Color National Origin Religion Sex

What did the Supreme Court's rationale support when it's decision in St. Francis College v. Al-Khazraji defined race?

Race is more of a social or sociopolitical construct than a biological scientific fact

What did the Civil Rights Act of 1991 amend about Section 1981?

Racial discrimination claims under Section 1981 are co-extensive with similar claims that under Title VII

Case law is fairly consistent that the determining factor in race discrimination cases is...

What race the employer considers the applicant

Can an employee-at-will still be considered a contract under Section 1981?

YES

Can white people sue under Section 1981?

YES

In the absence of direct evidence of discrimination, is the McDonnell Douglas circumstantial evidence analytical scheme applicable in section 1981 cases?

YES

Are there caps on Compensatory Damages under Title VII?

YES based on the number of employees who were on the employer's payroll during the year of (or the year preceding) the discriminatory conduct

If the employer cannot show that it would have made the same employment decision even if it had a discriminatory motive, can the plaintiff receive relief?

YES; Equitable relief, compensatory and punitive damages

Affirm

to declare that a court ruling is valid and must stand

Reverse and Remand

to nullify the lower decision and return the case for reconsideration or retrial

Bennum v. Rutgers State University court held...

unlawful discrimination must be based on the plaintiff's objective appearance to others, not his subjective feeling about his own ethnicity

Comparative Statistics

weigh the percentage of persons hired or promoted from the protected category against that of the "nonprotected" category and are usually utilized in disparate impact cases

Pretext

when an employer fires an employee for an illegal reason but, as a sham, claims that it used a legitimate reason to end the employment relationship

Disparate Treatment

when an employer intentionally treats an employee different because of an illegal criterion, such as race, sex, color, national origin, or religion

Mixed-Motive Case

when an employer is accused of having both a legitimate and an illegitimate reason for making an employment decision

Reverse and Render

where an appeal court overturns the decision of a lower court but does not send the case back to the lower court because no further action is necessary