Employment Discrimination

ADEA 4(a) Employment practices.

(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age; (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age

ADA Amendments of 2008: Purposes

- To convey congressional intent that the standard created in Toyota for substantially limits has created an inappropriately high level of limitation necessary to obtain coverage under the ADA. - The primary object of attention in cases brought under the ADA should be whether entities covered under the Act have complied with their obligations. - The question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis.

Prima Facie Case in Accommodation Case: Religion

1. She has a bona fide religious belief that conflicts with an employment requirement 2. She informed the employer of this belief 3. She was disciplined for the failure to comply with the conflicting employment requirement 4. Burden then shifts to the employer to demonstrate that it could not accommodate the P's religious needs without undue hardship

EPA

Se discrimination (wage)

Section 703(a) of Title VII (Disparate Treatment)

Section 703(a) of Title VII (a) Employer Policies It shall be an unlawful employment practice for an employer- (1) To fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, se, religion, or national origin

Vance v. Ball State University

Someone is not a supervisor unless he or she has the power to hire, fire, demote, promote, transfer, or discipline the victim - Holding: Employer is vicariously liable for an employee's unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim.

Lactation

ACA amendments to FLSA - reasonable break and space for nursing mothers to pump. Courts disagree about whether lactation and/ or breastfeeding is a medical condition related to pregnancy and whether it has to be accommodated

Section 703(e)(2): Religion

Applies to religious educational institutions and states that it is lawful for an institution to employ and hire employees of a particular religion if the institution is in whole or substantial part owned or managed by a particular religious' organization.

Gov't Employers & 11th Amend Liability

Can not bring suit against a state gov't employer for damages, but can for injunctive

General Dynamics Land Systems, Inc., v. Cline

Case in which Supreme Court held that the Age Discrimination in Employment Act does not protect younger workers, even if they are over age 40, from workplace decisions that favor older workers.

Faragher v. City of Boca Raton

Court ruling that distinguished between supervisor harassment that results in tangible employment action and supervisor harassment that does not. - Issue: When is an employer liable for hostile environment harassment by a supervisor? - Holding Part 1: If there is a tangible employment action, employer is vicariously liable - Holding Part 2: If supervisor is the harasser, but no tangible employment action, the employer is liable unless it can meet the burden of proving two-part affirmative defense: o Employer took reasonable care to prevent and correct harassing behavior AND o unreasonably failed to take advantage of any preventative or corrective opportunities provided by employer or to avoid harm otherwise. - Rule of thumb: existence of anti-harassment policy with complaint procedure and the plaintiff's failure to use the complaint procedure is instructive but not dispositive. o Here, the supervisors granted unchecked authority, isolating plaintiff from higher management. City did not disseminate policy to its beach employees and officials made no attempt to monitor conduct of supervisors. Not a clear way of bypassing supervisors to complain. Co-worker or third party harassment or third party harassment: need to prove that the employer knew or should have known of the harassment and did not take appropriate steps to remedy it Some factors indicating negligence: 1. unreasonably fails to instruct its employees to refrain from sexual harassment; 2. unreasonably fails to adopt rules, policies, and regulations designed to prevent harassment from occurring 3. unreasonably employs people it knows or should know to be engaged in sexual harassment of other employees 4. fails to properly supervise its employees to prevent harassment from occurring 5. stands by and does nothing when it knows, or should know, that harassment is occurring 6. fails to prevent harassment that it could have reasonably prevented What should an employer do to avoid liability? - harassment policies properly disbursed, signed off on and trained on - Train supervisors to watch for that stuff and promptly notify HR when it happens - Train supervisors to stop it if they can - Train HR how to investigate, document and remedy harassment claims, including when they should contact counsel

St. Mary's Honor Center v. Hicks

Court ruling that Title VII plaintiff must show that discrimination was the real reason for an employer's actions. Even if trier of fact does not believe defendant's articulated reasons for the employment action, it is not compelled to enter judgment for the plaintiff. P still retains the ultimate burden of persuasion of proving that the action was discriminatory

CROWN Act and similar legislation

Creating a respectful and open workplace - California became first state to prohibit discrimination in workplaces and schools based on natural and protective hairstyles, including locs, braids, afros, cornrows, twists, etc. - New York City and other states have followed.

Jesperson v Harrah's Operating Co. (2004)

Dress code requiring women to wear make-up does not constitute unlawful sex discrimination under Title VII

Gross v. FBL Financial Services

Issue brought to court? Whether the P must present direct evidence of age discrimination to get a mixed motive instruction. Issue the court decides? Whether a P can prove age discrimination under a mixed motive theory. Court holds: No, P may not bring a mixed motive claim under ADEA Holding: In ADEA cases, P must prove that age was the "but-for" cause of the adverse employment action. Burden of persuasion does not shift to the employer.

National Origin

1. The employer's obligation to verify its employees' authorization to work in the United States can sometimes lead to national orientation discrimination claims 2. Employment discrimination rights of undocumented workers 3. National origin discrimination with respect to workplace communication rules BUT Title VII does not protect against discrimination based on citizenship However, a citizenship rule can have a disparate impact on a particular national origin - Espinoza v. Farah Manufacturing Co

Elements of a Harassment Claim

1. Was the conduct unwelcome? 2. Was it severe or pervasive? 3. Was it because of a protected trait? 4. Employer vicariously liable ** Identity of the harasser only matters for vicarious liability issue **

Smith v. City of Salem

2004 Sixth Cir. decision that held that discrimination based on employee's transgender status is impermissible sex stereotyping under Price Waterhouse

Undue Hardship: Religion

If no reasonable accommodation offered, employer can defend by claiming undue hardship

Price Waterhouse v. Hopkins

A Supreme Court case in which Ann Hopkins sued her employer, Price Waterhouse, claiming that they had discriminated against her on the basis of sex in violation of Title VII of the Civil Rights Act, on the theory that her promotion denial had been based on sexual stereotyping. The Supreme Court accepted the argument that gender stereotyping does exist and that it can create a bias against women in the workplace that is not permissible under Title VII of the Civil Rights Act.

BFOQ: Religion

Institutions that are not religious institutions within the meaning of exemptions but nevertheless are religiously oriented have relied on the BFOQ defense (not very successfully)

Burdine

Provided two ways of proving pretext 1. Showing that the discriminatory reason more likely motivated the employer or 2. By showing that the employer's explanation is unworthy of credence

At Will Employment

employer can fire you for a good reason, bad reason, or no reason at all

Participation (Eternal)

filing a discrimination charge or complaint or being involved in the processing of such claims, whether with or being involved in the processing of such claims, whether with the EEPC, parallel state agency, or a court

ADEA (Age Discrimination in Employment Act)

protects individuals over 40

Title VII

race, color, religion, sex, national origin

Contraception

some courts have entertained disparate impact claims for policies excluding coverage of oral contraceptives

Appearance Regulations

Two types of cases are common: 1. challenges to the employer's dress or grooming rules that are based on gender 2. challenges to employer decisions to only hire employees who are attractive

McDonald v. Santa Fe Transp. Co. (Race discrimination)

Two white and one black employee were caught stealing. Two white employees were fired and the black employee was retained Sec 1981 prohibits racial discrimination against whites

quid pro quo harassment

Type of sexual harassment that occurs when an employee is forced to choose between giving in to a superior's sexual demands and forfeiting an economic benefit such as a pay increase, a promotion, or continued employment. - Supervisor requested sexual favors; - Subordinate employee rejected that request; - Supervisor took adverse action against the subordinate; and - The subordinate's rejection of the request caused/ motivated the adverse action (only applies to sex harassment claims)

Applicability of Disparate Impact Theory

Yes: Title VII & ADA Yes, but diluted: ADEA No: §1981 and under the Constitution

BFOQ (Bona Fide Occupational Qualification)

an exception in employment law that permits sex, age, religion, and the like to be used when making employment decisions, but only if they are "reasonably necessary to the normal operation of that particular business."

Infertility

Circuit split on whether infertility was a related medical condition to pregnancy and childbirth. But see ADAAA (major bodily functions include reproductive functions).

Three Mandates of the PDA

1. Prohibits discrimination based on pregnancy 2. Requires equal treatment of pregnant workers and non-pregnant workers whose ability or inability to work is similar 3. Specifies the ramification of the PDA on abortion funding

Major Life Activities after Amendments

(A)In general. Major life activities include: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working (B)Major Bodily Functions. A major life activity includes the operation of a major bodily function, including functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

Definition of an Individual with a Disability

(a) A physical or mental impairment that substantially limits one or more major life activities (b) A record of such an impairment (c) Being regarded as having such an impairment

Title I General Rule: Disability

(a) No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, or other terms, conditions, and privileges of employment. - Discrimination includes not making reasonable accommodations

ADA Amendments on Mitigating Measures

(i) the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as . . . (ii) (ii) The ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.

Individuals who Engage in Illegal Use of Drugs and Use of Alcohol

- 12114(a): Individual with a disability does not include employee who is currently engaging in illegal use of drugs. - 12114(c): Employer can hold employee who engaged in illegal use of drugs or who is an alcoholic to the same standards for employment or job performance as it holds other employees, even if unsatisfactory performance is related to drug use or alcoholism of such employer. - Medical marijuana

Associational Discrimination

- 42 USC 12112(b)(4): "The term 'discriminate' includes . . . excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association. - Plaintiff must prove that the employer knew of the disability and that the adverse decision was because of the disability of the person with whom the plaintiff was associated. How close does the association have to be? - Three situations: expense, disability by association, or distraction. Re distraction: no obligation to provide reasonable accommodations to employees because of the disabilities of relatives or associates of the employee.

Immigration Reform and Control Act of 1986

- : assuming an employee is lawfully in the country and allowed to work, cannot discriminate on the basis of citizenship (4 or more employees) or on the basis of national origin (4-15 employees). - IRCA imposes affirmative requirements on employers to verify identity and employment eligibility, but - Over-zealous enforcement of documentation requirements of IRCA can sometimes lead to a citizenship discrimination claim under IRCA or a national origin discrimination claim under Title VII. Employers must walk the fine line between making sure employees are lawfully allowed to work in the U.S. and avoiding discriminatory tactics with respect to verifying eligibility

EEOC v. RG & GR Harris Funeral Homes

- Aimee Stephens was fired - Holding: District court correctly determined that Stephens was fired because of her failure to conform to sex stereotypes; District court erred in finding that Stephens could not pursue a claim based on her transgender and transitioning status.

EEOC Guidelines on Race Discrimination

- Ancestry - Physical characteristics, including color, hair, facial features, height, weight - Race-linked illness - culture - perception - subgroup or "race plus"

United States Steelworkers v. Weber

- At issue: legality of voluntary affirmative action plan (employer and union negotiated) that reserves training spots for black employees (50%) until percentage of black craft workers in the plant is in the same as in the local labor force - Holding: Title VII does not prohibit this race-conscious affirmative action plan - Employer and union agreed to have on the job training programs to teach unskilled workers the skills to become craft workers. Prior exclusion prevented them from getting the experience. - Plan called for 50% trainees had to be black. 7/13 were black. Most senior black worker had less seniority than several white workers that were not selected. - Court's analysis: Starting point: Title VII protects white as well as blacks. 703(a) makes it illegal to discriminate because of race. o Court says: Cannot rely on literal wording of statute because you need to look at background and history of statute. Historical purpose of Title VII was the lack of good jobs for blacks. The rest of the laws wouldn't matter if we could not get good jobs for blacks. o Court said that it would be ironic if the Act meant to help minority employees was the first one to prohibit voluntary efforts. o 703(j): Nothing contained in this subchapter shall be interpreted to require any employer to grant preferential treatment to any individual or to any group because of the race . . .of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race. . . § •Opponents of Title VII wanted 703(j) because: (1) Act would require employers with racially imbalanced work forces to grant preferential treatment (2) employers would do it even if not required. § If Congress wanted to prohibit all affirmative action - could have said nothing in this Act requires or permits employer from adopting affirmative action plan. - TEST: Purpose of the plan must be to break down patterns of racial segregation and eliminate a "manifest imbalance" Plan must not unnecessarily trammel the interests of the white employees

Stereotypes for Caregiving

- Cannot assume that women will work less or allow caregiving to interfere with work. - Cannot deny opportunities based on assumptions that mothers are less committed. - Other evidence of stereotypes: giving less favorable assignments, held to a higher standard on performance evaluations, given lower evaluations after leaves of absence. - But only protects ideal workers.

Breeden II

- Claimed she was punished for filing charges against the company (with EEOC) and for filing the present lawsuit. She filed her lawsuit on Apr. 1. On Apr. 10, her supervisor mentioned that she was contemplating transferring the plaintiff. The transfer took place in May - Causation: It was not enough because the complaint was not served on the defendant until April 11 and decision maker testified that she did not see the complaint until after April 11 Holding: Plaintiff cannot prove a causal connection between her participation and the adverse employment action

Jarvis v. Potter

- Claims: discriminated against him by failing to accommodate his disability, PTSD, and retaliation - Following Bragdon v. Abbott, fact-finder's role is to determine whether the employer's decision was objectively reasonable. - "We believe even nonexpert employers should be protected when they make objectively reasonable assessments, recognizing, of course, that objective reasonableness may well depend on whether professional advice is obtained." - Postal service conducted an individualized assessment that relied on the best available objective evidence. EEOC regulation: o 1. Duration of risk. 2. Nature and severity of the potential harm 3. Likelihood that the potential harm will occur 4. Imminence of the potential harm

Unwelcome behavior

- Conduct must be subjectively unwelcome - 9th Circuit Definition: employees did not solicit or incite it, and the employee regarded the conduct as undesirable or offensive - If a consensual relationship becomes unwelcome, courts might require the P to demonstrate that she clearly signaled to the alleged harasser that the conduct was unwelcome.

Direct Threat (Disability)

- Defenses: The term "qualification standards" may include a requirement that an individual shall not pose a direct threat to the health or safety of others in the workplace. 42 USC 12113(b). - Defined: A significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation. 42 USC 12111(3).

Race and Arrest Records

- Employer's decision not to hire plaintiff as a sheet-metal worker was predicated on his statement that he had been arrested 14 times, and not any consideration of convictions or of national security - Barring applicants based on arrest records has a disparate impact based on race. Employer has no reasonable business purpose for asking prospective employees about arrest records. Thus, plaintiff's disparate impact claim succeeds.

US Airways v Barnett

- Facts: Back injury. Transferred to the mailroom position, which was less physically demanding. Two years later, opened up the position to seniority bidding. Someone more senior got the position. Barnett was fired. - Issue: resolving the conflict between a disabled worker who needs a reassignment as a reasonable accommodation and the interests of other workers with more seniority rights who want the same position - - US Airways Argument: ADA does not require employer to grant an accommodation that would violate a disability-neutral rule by providing a preference. - Court's response: the simple fact that an accommodation would provide a preference—in the sense that it would permit the individual with a disability to violate a rule that others must obey—cannot automatically demonstrate that the accommodation is not reasonable. - Burden rules: Employee's burden to show that the accommodation is reasonable on its face, in the ordinary run of cases. Then the employer has the burden of showing special circumstances to prove undue hardship. - Reassignment is not ordinarily a reasonable accommodation if doing so interfere with another employee's rights under a seniority system, regardless of whether the seniority system is unilaterally imposed or part of a collective bargaining agreement. - Souter's Dissent: No exception for seniority systems like under Title VII and ADEA which makes the ADA ambiguous, so we turn to legislative history. Legislative history says seniority systems in CBAs are only one factor in considering reasonable accommodations. Knew of Hardison and did not adopt a seniority system exception.

Burlington Northern & Santa Fe Railway v. White

- Facts: Sheila White (plaintiff) worked as a forklift operator for Burlington Northern and Santa Fe Railway Co. (Burlington) (defendant). White was the only woman in her department. After White complained of harassment by her supervisor, she was reassigned from forklift operator to track laborer, a more arduous and less desirable position. White's pay and benefits remained the same. After filing a formal discrimination charge with the Equal Employment Opportunity Commission (EEOC), White was suspended without pay for 37 days. According to Burlington, White was suspended for insubordination. An EEOC officer found that White had not been insubordinate and ordered her reinstated with back pay. White filed a lawsuit against Burlington, alleging the reassignment of job duties and suspension amounted to unlawful retaliation under Title VII of the Civil Rights Act of 1964 (Title VII) - Rule: The anti-retaliation provision found in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), is not limited to employer conduct related to the terms and conditions of employment - Issues: - (1) Do harms have to be related to the workplace? o Dicta: Anti-retaliation provision is not limited to discriminatory actions that affect the terms and conditions of employment o retaliation can also take place outside of the workplace - (2) How harmful must the actions be? Holding: the retaliatory action must be severe enough that a reasonable employee would have found the challenged action materially adverse - that

Young v. UPS

- Facts? UPS refused to accommodate Young's pregnancy induced lifting restriction, causing her to go on unpaid leave. Classes of individuals who could receive light duty? - Prima facie case when arguing that the denial of an accommodation is disparate treatment under the PDA: 1) that she belongs to a protected class; 2) that she sought accommodation; 3) that the employer did not accommodate her; and 4)that the employer did accommodate others similar in their ability or inability to work. - Employer can then allege a legitimate non-discriminatory reason BUT the reason cannot simply be that it is more expensive or inconvenient to accommodate pregnant employees. Pretext? Plaintiff can demonstrate that the employer's policies impose a significant burden on pregnant workers and that the employer's LNR "are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed— give rise to an inference of intentional discrimination." - How might plaintiff prove a significant burden in this case? By providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers. o And plaintiff can prove that the employer's reasons for not accommodating pregnant workers are not sufficiently strong by pointing to the multiple policies that accommodate nonpregnant workers with lifting restrictions. - UPS's policies are neutral with respect to pregnancy; thus, no intentional discrimination based on pregnancy. o Criticizes the court for making up a new rule and test for cases brought under the PDA. o Confusing disparate treatment with disparate impact.

Retaliation (disability)

- Follows Title VII PFC (protected activity, adverse employment action, causation). - Also contains an interference provision: Unlawful to "coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of . . . any right . . . protected by this chapter. - Requesting an accommodation under the ADA is protected activity for a retaliation claim.

Ministerial Exemption

- Free exercise clause of the constitution precludes judicial review of decisions by religious entities concerning the terms and conditions of employment of their ministers because the relationship between an organized church and its ministers is its lifeblood. - Rationale? Two reasons: imposition of secular standards on a church's employment of its ministers will burden the free exercise of religion; and the state's interest in eliminating employment discrimination is outweighed by the church's constitutional right of autonomy in its own domain. - Not limited to just ministers. If the employee's primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision of or participation in religious ritual or worship, he or she should be considered clergy.

EEOC Guidance on Arrest Records

- Generally, prohibiting employment based on arrest record alone will violate Title VII's prohibition of race discrimination - Broad exclusion based on arrest is not job related and consistent with business necessity - sometimes, an employer can lawfully base an employment decision on the underlying conduct that led to the arrest

FMLA basics

- Have to be employed for 1 year and have worked 1250 hours in the prior year - Employer has to have 50 employees within a 75-mile radius - Can have leave for: (1) birth of the child and child care; (2) placement of a child with the employee for adoption or foster care; (3) a serious health condition of the employee's spouse, son, daughter or parent (but not parent-in-law; (4) a serious health condition that makes the employee unable to perform the functions of the job - Not paid leave but employer can require you to substitute accrued but used paid leave, such as vacation, etc. - Notice required, can take leave intermittently, have to keep your benefits intact, right to reinstatement

Hosanna-Taylor Evangelical Lutheran Church and School v. EEOC

- Issue: does the 1st amendment bar an employment discrimination lawsuit when the employer is a religious group and the employee is one of the group's ministers? - Facts: Evangelical Lutheran Church and school classifies teachers into "called" and "lay" teachers. Called teachers, after a great deal of training, become ministers of the church. P was a called teacher. When plaintiff was ready to return to work after a disability leave of absence, school said they had already filled her position for the remainder of the year. Congregation voted to offer her a "peaceful release" of her call, but she refused to resign. She tried to return to work and they wouldn't let her. She threatened to pursue her legal rights. They fired her and rescinded her call, citing "insubordination and disruptive behavior and damaging her working relationship by threatening to take legal action. - EEOC sued on her behalf arguing that her termination had been unlawful retaliation under the ADA; Employer invoked the ministerial exception, stating that she had been fired for a religious reason, namely that her threat to sue the church violated their belief that Christians should solve their disputes internally. - First Amendment - both clauses bar the government from interfering with the decision of a religious group to fire one of its ministers; "requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.

703(e)

- It is not unlawful for an employer to hire or employ any individual on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. - Affirmative defense, so employer bears the burden of persuasion

Qualification Standards (Disability)

- It may be a defense to a charge of discrimination under this chapter that an alleged application of qualification standards, tests, or selection criteria that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability has been shown to be job-related and consistent with business necessity, and that such performance cannot be accomplished by the employer

EEOC Regulations for BFOQ Defense

- No BFOQ defense based on assumptions or stereotypes - 29 CFR §1604.2, no BFOQ defense because of the preference of coworkers, the employer, clients or customers except when it is necessary for purposes of authenticity or genuineness (an actor or actress)

Rights of Unauthorized Aliens

- No claim for citizenship discrimination under Title VII but unauthorized aliens can sue for sex, race, national origin discrimination under Title VII (Espinoza) - Hoffman Plastics: NLRA case - no right to backpay damages - FLSA context, courts have allowed back pay damages for unauthorized aliens - Title VII: Courts are split on issue of whether unauthorized aliens can collect backpay or other damages

Newport News Shipbuilding and Drydock Company

- Offered female employees pregnancy related benefits but did not offer the pregnant wives of male employee's health insurance benefits. Male employees challenged the plan - PDA means that the employer's plan that gives male employees a benefit package for dependents that is less inclusive than the dependency coverage provided to married female employees is unlawful.

Intent & Cat's Paw

- One person is being used as the tool of another - Issue is whether employer is liable when the final decision maker does not have a discriminatory motive but has been influenced by someone else who does have a discriminatory motive

Criticisms of the FMLA

- Over 40% of the population is not covered. Disproportionately lower income workers. - Gender neutral but has not changed gender norms - unpaid. Makes it harder to get men to take leave and many women who are entitled to it cannot afford to take it

Salas v. Wisconsin Dept. of Corrections

- Plaintiff claims discrimination based on his age, race, color, and national origin, alleging that he was treated more harshly than non-Hispanic employees when he was terminated for violating work rules. - At issue here are national origin and color. - Defendant's argument: plaintiff failed to state a claim because his complaint does not indicate the hue of his skin or the country from which his forbearers came - • National origin: Defendant argues that plaintiff's identification as "Hispanic" is only relevant to race, and not national origin. - Definition of Hispanic: "of or related to Spanish-speaking countries, especially those of Latin America." Hispanic and • Definition of Hispanic: "of or related to Spanish speaking countries, especially those of Latin America." Hispanic and Latino are often used interchangeably although Hispanic is a broader description. - Court holds that plaintiff has designated his national origin adequately by alleging that he is Hispanic. - Court states: "Although individuals of Hispanic origin may have skin tones that range from dark to fair, the term Hispanic is often associated with color as well as ethnicity. To pretend otherwise would be patently disingenuous."

EEOC v. Catastrophe Management

- Plaintiff had a job offer (as a customer service phone representative) rescinded because she wore her hair in locs. The employer had a policy that stated: "hairstyle should reflect a business/professional image. No excessive hairstyles or unusual colors are acceptable." - 11th Circuit affirmed district court's grant of motion to dismiss, based primarily on the immutability doctrine. Afros are immutable; locs are not. And socio-cultural aspects of race are not deserving of protection.

Maldonado v. City of Altus

- Policy: English only during working hours. - Exceptions: -strictly private communications between coworkers while on approved breaks as long as city property not being used and -Strictly private communications between an employee and a family member so long as the communications are limited in time and are not disruptive to the work environment. - Employees are encouraged to be sensitive to the feelings of their fellow employees, including a possible feeling of exclusion if a coworker cannot understand what is being said in his or her presence when a language other than English is being spoken. - Even though most hostile environment claims are brought as disparate treatment claims, can bring a disparate impact claim based on hostile environment (as the adverse employment action). - The policy itself, and not just the effect of the policy in evoking hostility by co-workers, may create or contribute to the hostility of the work environment. - "the less the apparent the justification for mandating English, the more reasonable it is to infer hostility toward employees who ethnic group or nationality favors another language." - EEOC guidelines: (1) English-only rule that applies at all times is considered a burdensome term and condition of employment presumptively constituting a Title VI violation; (2) an English-only rule that applies only at certain times does not violate Title VII if the employer can justify the rule by showing business necessity

Nunies v. HIE Holdings, Inc.

- Prima facie case: 1) disabled within the meaning of ADA 2) qualified 3) employer terminated him because of his disability ADAAA: is regarded as having such an impairment if the individual establishes that he has been subjected to a prohibited action because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.

Mossby-Meachem v. Memphis Light, Gas & Water Division

- Prima facie case: 1. she is disabled within meaning of Act; 2. she is otherwise qualified for the position, with or without reasonable accommodation, 3. her employer knew or had reason to know about her disability, 4. she requested an accommodation, 5. the employer failed to provide the necessary accommodation. Once the P establishes the PFC, burden shifts to employer to demonstrate that any particular accommodation would impose an undue hardship. - EEOC factors to Consider when Determining Essential Functions: 1. Employer's judgment as to which functions are essential, 2. written job descriptions prepared before advertising or interviewing applicants, 3. Amount of time spent on the job, 4. consequences of not requiring the incumbent to perform the function. Will this place an undue burden on other employees 5. the terms of a collective bargaining agreement, 6. work experience of past incumbents in the position - Reassignment basics: accommodation of last resort, required only to a vacant position, employer has no duty to create a position, bump, or promote, disabled employee must be qualified for the new position, if above conditions met, EEOC's position is that disabled employee is entitled to reassignment as a reasonable accommodation

Affirmative Action: Constitutional Standards

- Race-based affirmative action will only be upheld if the affirmative action meets the strict scrutiny standard—that the plan is "narrowly tailored" and furthers "compelling governmental interests." - Remedying past discrimination is a compelling reason for affirmative action. - Wygantv. Jackson Board of Education: public school employer cannot take race into account merely to correct societal discrimination or to provide same-race role models for minority students. - Some courts have applied the Grutter rationale in higher education (diversity) to the employment context.

ADA Unique Provisions

- Reasonable accommodation mandate; - Prohibits medical exams and inquiries; - Prohibits associational discrimination - Unlike Title VII, which protects everyone, and ADEA, which protects everyone over 40, the ADA only protects a very specific class of individuals

Dothard v. Rawlinson II

- Requirement for the job? 120 pounds, 5'2 - What the D wanted: The D's height and weight criteria did not create a disparate impact; wanted them to look at applicants - First Holding: P can establish a disparate impact claim based on neutral height and weight requirements by showing a significant disparate impact based on national height and weight averages. Employer could have challenged the disparate impact finding with its own evidence but failed to - Second Holding: D did not meet its burden of showing job related because it did not attempt to prove that height and weight were related to strength

Chadwick v. Wellpoint

- Sex-plus: cases where not all members of a disfavored class are discriminated against. Employer treats differently a subclass of men or women. Here, women with young children. Must prove that discrimination is at least in part because of the employee's sex. - Holding: Jury could reasonably conclude that a sex-based stereotype was behind Miller's explanation that: "It was nothing you did or didn't do. It was just that you're going to school, you have the kids and you just have a lot on your plate right now."

Classifications Based on Pregnancy

- Starting point: History of discrimination against women because of pregnancy. - General Electric Co. v. Gilbert—the Supreme Court held that an otherwise comprehensive short-term disability policy that excluded pregnancy-related disabilities from coverage did not discriminate on the basis of sex. - Reasoning for the court's decision: o 1) pregnancy discrimination does not adversely affect all women and therefore is not the same thing as sex discrimination; and o (2) disability insurance which covers the same illnesses and conditions for both men and women is equal coverage. Court ignores the fact that only women will be adversely affected by this policy.

Chevron U.S.A. v. Echazabal

- The EEOC expanded the statutory definition of direct threat to include not only risk to oneself - Supreme Court upheld the regulation stating that it was a reasonable interpretation of a vague statutory term - Undue Hardship: o Section 12111(10) § (A) In general. The term "undue hardship" means an action requiring significant difficulty or expense, when considered in light of the factors set for § Factors to be considered: · (i) The nature and cost of the accommodation needed under this chapter; · (ii) The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; · (iii)The overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and · (iv)The type of operation or operations of the covered entity, including the composition, structure, and functions of the workplace of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.

Sutton v. United Air Lines

- Twin sisters with fully correctable myopia applied as airline pilots. United had a rule that said that airline pilots had to have 20/100 vision without corrective lenses. They were denied employment. - Issue: Do we consider whether they are disabled in their mitigated state (wearing their glasses) or without mitigations (their vision without glasses)? - Holding: In determining whether someone is disabled under the ADA, the person should be viewed considering mitigating measures.

Toyota Motor Mfg. Kentucky, Inc. v. Williams

- What does it mean for an impairment to "substantially limit" a major life activity? - "Substantially" means "considerable" or "to a large degree." - "Major" in major life activity means "important": those activities that are of central importance to daily life. - In order for manual tasks to be substantially limited, the manual tasks in question must be central to daily life. - Court also says that the terms need to be interpreted strictly to "create a demanding standard for qualifying as disabled." Why? Because of 43 million number. - Holding: "We therefore hold that to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives. The impairment's impact must also be permanent or long term."

Rogers v. EEOC

- What happened: Doctor/ employer's practice segregated Hispanic patients from non-Hispanic patients. - Holding: employees' psychological as well as economic fringes are entitled to protection. But also states that not every mere utterance of an ethnic or racial epithet which engenders offensive feelings in employees is actionable.

Essential v. Marginal (Disability)

- an employer is obligated to excuse the nonperformance of a marginal function - an employer is not obligated to excuse the nonperformance of an essential function - an employer has a duty to accommodate an individual with a disability by trading the marginal functions of that employee's job with that of another person - an employer does not have such a duty to accommodate an individual with a disability by trading the essential functions of the job

Proof Structures for Religious Discrimination

- are the same as other discrimination cases, BUT P has to prove that D knew of the plaintiff's religion. Unlike race and sex, which are usually apparent, religion is not.

Medical exams and inquiries:

- employers may NOT ask applicant about the existence, nature, or severity of a disability - may be asked on how to perform something -can ask for medical exam only if all entry employees complete exam - medical exam of employees must be related to job and consistent with employer's business needs

Zarda v. Altitude Express

- ual orientation discrimination as a subset of sex discrimination o sexual orientation as a function of sex § because of sex/ motivating factor § but-for sex § Associational discrimination

Actual Disability

1. Determine whether the condition is an impairment 2. Identify the major life activity that it affects 3. Tie the two together by asking whether the impairment substantially limits the major life activity

Plaintiff's Prima Facie Case: Disability

1. Disabled 2. Qualified with or without reasonable accommodations 3. Suffered an adverse employment action 4. Employer knew of plaintiff's disability 5. Employee with a disability was treated worse than a similarly situated employee without a disability - Defendant's Burden of Production: articulate a legitimate non discriminatory reason for the action - Plaintiff's burden to prove that the defendant's articulated reason is not the real reason but it is instead cover-up for discrimination Qualified Individual Two-Step Test 1. Posses the requisite skill, experience, education, and other related requirements of the position, and 2. can perform the essential functions of such position with or without reasonable accommodation

Common Uses of Disparate Impact

1. Height and weight requirements 2. Heavy lifting requirements 3. Limiting employment of methadone users 4. Employers inquiring about arrest records

When are Caregivers not Protected?

1. If they miss more work than attendance policy allows (and it's not covered by FMLA). E.g., daycare emergencies. 2. If they need leave for pregnancy, childbirth or childcare and they are not eligible for FMLA leave or employer is not covered by FMLA. 3. If they don't get promoted because they don't work overtime. 4. If they don't get promoted because they refuse to travel or relocate. 5. If they get disciplined for missing too much time.

Religion Important Facts

1. May be protected even though no specific organization espouses them 2. Even if the religion to which the person alleges to belong doesn't believe in it, that does not matter

Three ways to show harassment

1. Motivated by sexual desire (implicit in the male/female harassment with proposals of sexual activity or in same sex cases where the harasser is gay. 2. Need not be motivated by sexual desire if you can prove that you were harassed in sex specific and derogatory terms so as to make it clear that harassment was because of sex 3. Direct comparative evidence of treatment of both sexes

Prima Facie Case for Participation or Opposition

1. Plaintiff engaged in a protected activity (participation or opposition) 2. suffered an adverse employment action 3. Casual connection between protected activity and adverse employment action

PDA Prima Facie Case

1. Plaintiff was pregnant 2. She was qualified for her job or meeting the employer's legitimate expectations 3. She was subjected to an adverse employment action 4. There is a neus (causation) between her pregnancy and the adverse employment decision (this requires the employer to have knowledge of the pregnancy)

Supreme Ct. Definition for Religion

A sincere belief that occupies in the life of the believer a place parallel to that of God in traditional religion

703 (m) - CRA 1991

An unlawful employment practice is established when the complaining party demonstrates that race, color, religion, se, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice

McKennon v. Nashville Banner Publishing

Assumptions Made: age discrimination was the reason for her initial termination and her behavior would have warranted the discharge. Holding: After-acquired evidence does not absolve D of liability. Employer has still violated the act even if it discovers after-acquired evidence that would have caused the termination. Misconduct is not completely irrelevant. In damages phase, front pay & reinstatement are not appropriate remedies. Back pay will usually be limited from the time of the adverse employment action to the time when the evidence was acquired.

McDonnell Douglas Corp. v. Green

Case that established criteria for disparate treatment. What happened: the adverse employment action was the employer's refusal to recall from lay-off, he thought that he was not recalled from the law-off because of his race and because of retaliation; employer said it was because of his illegal protests about his lay-off Prima Facie Case (Modified) Plaintiff has the burden of production and persuasion to show: 1. That she is in a protected group (now, everyone) 2. That she is qualified, defined as "performing her job at a level that met her employer's legitimate expectations." 3. That he suffered an adverse employment action 4. In a termination case, either: 1) that he was replaced by someone not in his protected class; or 2) that someone similarly situated but in a different protected class was treated favorably Defendant's Burden Burden of production to show a legitimate, non-discriminatory reason for its action Two requirements: 1. Must be able to put the reason into evidence 2. Defendant must provide a sufficiently specific reason Plaintiff's Final Burden Burden of production and persuasion to show that defendant's reason was a pretext for a racially discriminatory reason Ways Pretext can be Shown: - If people were involved in acts of comparable seriousness to what you did and were retained or rehired - Treatment of the person during their previous term of employment - Employer's reaction to legitimate civil rights activities - The Employer's general policy and practice with respect to minority employment - On retrial, the respondent must be given a full and fair opportunity to demonstrate by competent evidence that the presumptively valid reasons for his rejection were in fact a cover up for a discriminatory decision

International Brotherhood of Teamsters v. United States

Central claim: company had engaged in a pattern or practice of discriminating against minorities in hiring line driver and giving them lower paying, less desirable positions - Government must prove that there was "more tan a mere occurrence of isolated or accidental or sporadic discriminatory acts. It had to establish that racial discrimination was the company's standard operating procedure - the regular rather than the unusual practice o How? through statistics - Seniority System Issue: 703(h): it is not unlawful to apply different terms of employment pursuant to a bona fide seniority system Holding: An otherwise neutral, legitimate seniority system does not become unlawful under Title VII simply because it may perpetuate pre-Act discrimination Damages Phase: - How to figure out which individuals were victims of discrimination. o By demonstrating the existence of a discriminatory hiring pattern and practice the plaintiffs had made out a prima facie case of discrimination against the individual class members; the burden therefore shifted to the employer to prove that individuals who reapply were not in fact victims of previous hiring discrimination o Applicants: Gov't must only show that an alleged victim unsuccessfully applied for a job. Burden then shifts to the employer to demonstrate that the individual applicant was denied an employment opportunity for lawful reasons. o Non-applicants: Incumbent employee's failure to apply for a job is not a complete bar to an award of retroactive seniority. Individual non-applicants must be given the opportunity of proving that they should be treated as applicants and are therefore entitled to relief.

severe and pervasive

Characteristic of a hostile work environment in which employees are subject to a pattern of exposure to unwanted, prohibited conduct. Requires fact-based inquiry without a universal definition for all workplaces - harassment must be so severe or pervasive that (1) it causes the plaintiff to find the work environment abusive (subjective standard), and (2) it would cause a reasonable person to find the work environment abusive (objective standard)

Rogers v. American Airlines

Claim: policy that prohibited employees from wearing an all-braided hairstyle discriminates against her based on her sex and race. - Is this sex discrimination? o Court says no, because it affects men too. - Does the policy discriminate based on race? • o Her argument: the braided hairstyle has been and continues to be part of the cultural and historical essence of Black American women. o Court states: "There can be little doubt that, if American adopted a policy which foreclosed Black women/all women from wearing hair styled as an 'Afro/Bush,' that policy would have very pointedly racial dynamics..." § Thus, an employer's policy prohibiting the Afro/bush might violate Title VII because banning a natural hairstyle would implicate the policies underlying the prohibition of discrimination on the basis of immutable characteristics - Plaintiff has not alleged that the all-braided hair style is worn exclusively or even predominantly by black people. o All-braided hairstyle is not immutable and is a matter of choice and an easily changed characteristic. o Title VII focuses on immutable characteristics.

Abortion

Congress's proviso that employers do not have to pay for abortions except in cases where life of mother would be endangered if she carries to term has been interpreted to mean that employers cannot fire employee for having an abortion

Harris v. Forklift Systems

Court reinforced its decision that is sexual harassment is so pervasive as to create a hostile or abusive work environment it is a form of gender discrimination, which is forbidden by the 1964 Civil Rights Act Standard: when the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated. Objective and subjective test. harassment must be such that a reasonable would find it offensive. Mere utterance of an epithet which engenders offensive feelings is not enough. Bit does not need to lead to a nervous breakdown. Factors: severity, frequency, physically threatening or humiliating or a mere offensive utterance

Howard v. Wolff Broadcasting Corp

Default Rule: employer can terminate for any reason (can also change terms of employment) Unless 1. Statutory provision prohibiting termination - Breach of contract - Handbook exception 2. Public Policy Exception - Would be contrary to public policy - refused to break the law - public obligation - legal right

ADA (Americans with Disabilities Act)

Disability discrimination

integrated and Joint Employers

Employer is liable for discriminatory action by its supervisors Majority rule: supervisors & co-workers are not individually liable under title vii, the ADA, and the ADEA. Individual liability is allowed in some states and under 1981

Duty of Reasonable Accommodation (Religion)

Employers have duty to accommodate employees' religious beliefs, but the SC has read the duty very narrowly

Saint Francis College v. Al-Khazraji (national origin)

Facts: Al-Khazraji, a professor and U.S. citizen born in Iraq, filed suit against his former employer and its tenure committee for denying him tenure on the basis of his Arabian race in violation of 42 U.S.C. Section 1981. Outcome: Congress intended to protect identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethical characteristics. Such discrimination is racial discrimination that Congress intended 1981 to forbid, whether or not it would be classified as racial in terms of modern scientific theory.

Wards Cove Packing Co. v. Atonio

Facts: Cannery jobs, almost all non-whites. Filipinos (hired through union) and Alaskan Natives that live near canneries; non-cannery jobs- many were skilled, but some were unskilled and yet most were white and paid more than cannery jobs. Very intense work. All employees had to live on the premises. Separate dormitory style living and mess halls. The plaintiffs were challenging the hiring/ promotion policies. First Holding: Mere evidence of racial disparities in skilled and unskilled jobs within the same company is not sufficient to establish a prima facie case of discrimination under title VII. Comparison between the percentage of cannery workers who are nonwhite and the percentage of non cannery workers who are nonwhite does not make out a prima facie case of disparate impact. Second Holding: The plaintiff must show that a particular element of the hiring process caused a significantly disparate impact on nonwhites Third Holding: Burden for employer's defense: only the burden of production and only to show the "challenged practice serves, in a significant way, the legitimate employment goals of the employer" Fourth Holding: Plaintiff burden to show pretext: other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer's legitimate hiring interest, and the costs or other burdens of alternative selection devices are relevant.

Desert Palace v. Costa

Facts: Catharina Costa worked for Desert Palace in its warehouse as a heavy-equipment operator. Costa was the only woman in he position. Costa had a history of conflict with her managers and co-workers that had resulted in various disciplinary measures against her. Costa was fired after she was involved in a physical fight with another employee, Herbert Geber. Geber, who had no disciplinary record, received a weeklong suspension. Costa sued Desert Palace under Title VII alleging se discrimination. Issue: Under Title VII, is a plaintiff required to offer direct evidence of discrimination in order to obtain a mixed- motives jury instruction? Holding: No direct evidence required for mixed motive instruction under 703(m). Nothing in the statute's plain language requires a plaintiff to make such a showing by direct evidence; it merely requires that a plaintiff "demonstrate" an employer's practice was based in part on an unlawful consideration. Conclusion: In order to obtain an instruction under 703(m), plaintiff need only present sufficient evidence for a reasonable jury to conclude that sex . . . was a motivating factor for any employment practice

Espinoza v. Farah Manufacturing

Facts: Cecilia Espinoza, a lawful Mexican alien, applied for a position at Farah Manufacturing's San Antonio Division. She was denied the position, however, as a result of Farah's policy only to hire U.S. citizens Issue: Whether Title VII's proscription against discrimination on the basis of national origin protects against discrimination on the basis of citizenship. Holding: Title VII does not apply to citizenship discrimination (fed gov't only hires citizens)

Hishon v. King & Spalding

Facts: Elizabeth Hishon, a woman, was hired as an associate at the law firm King & Spaulding. According to Hishon, during the hiring process, King & Spaulding led her to believe that she would be promoted to partner on a fair and equal basis, after a certain number of years of satisfactory employment with the firm. After subsequently seeking and being rejected for a partnership position, Hishon sued under Title VII, alleging se discrimination Issue: Are benefits of an employment relationship subject to Title VII of the Civil Rights Act, even where they are not contained in the terms of an employment contract? Outcome: Yes. Once a contractual employer-employee relationship arises, Title VII's protections apply and prohibit discrimination in the "terms, condition, or privileges of employment" An employer may violate title VII by discriminating with regard to an eplicit or implicit contractual provision. Once an employer has made an employment benefit available, it may not discriminate in applying that benefit on the basis of race, color, religion, sex, or national origin. Here, Hishon alleged that the prospect of partnership was a generally acknowledged benefit of being hired as an associate at King & Spalding. If there was sufficient evidence to support this contention, then partnership consideration was a term, condition, or privilege of employment at King & Spalding, and the firm would be liable under Title VII if it discriminated on the basis of sex in making partnership decisions.

Clark County School District v. Breeden

Facts: In October 1994, Shirley Breeden (plaintiff), an employee of the Clark County School District (the District) (defendant), met with a male supervisor and another male employee to go over the psychological evaluation reports of several job applicants. One of the reports included a sexually explicit comment made by the applicant. Breeden's supervisor read the comment aloud and indicated he did not understand its meaning. The other male employee told the supervisor he would explain the comment later, and both men laughed. Breeden later complained about this exchange to the male employee who made the comment, the employee's supervisor, and two of the District's assistant superintendents. In 1997, Breeden was transferred to a different position within the District. Breeden filed a retaliation claim against the District under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e-3(a), alleging she was punished for the complaints she made to personnel several years earlier and for initiating a suit with the Equal Employment Opportunity Commission (EEOC). - For opposition claims: Plaintiff must reasonably believe that the behavior she is complaining about is unlawful - Holding: no reasonable person could have believed that the incident violated Title VII because it clearly does not meet the severe or pervasive standard

Ansonia Board of Education v. Philbrook

Facts: Leave policy allowed three days leave for religious holidays. Accumulate sick leave days, three of which could be used for personal business, but not religious holidays. Plaintiff used the three days allotted and then either took unauthorized unpaid leave, scheduled required hospital visits on church holy days, or worked those days scheduled required hospital visits on church holy days, or worked those days Accommodation Requested: Allow employees to use the personal days for religious holidays or allow him to pay the cost of the substitute and receive full pay for additional religious holidays; employer refused but allowed him to take unpaid leave for holidays Holding: Nothing in the statute requires an employer to choose any particular reasonable accommodation. if the employer has already reasonably accommodated the employee's religious needs, the inquiry ends. Employer need not prove that each other accommodation would cause an undue hardship

University of Texas Southwestern Medical Center v. Nassar

Facts: P is a doctor of Middle Eastern descent who is claiming about discrimination and harassment by his boss. When he asked to step down as faculty but continue working at the hospital, they said yes, and he indicated in a letter that he was stepping down because of religious harassment by his supervisor. Hospital withdrew the offer when Dr. Fitz protested that all staff physicians are supposed to be members of the faculty. Issue: What causation standard do we apply to retaliation claims under Title VII? Options: 703(m) motivating factor; Price Waterhouse burden shifting framework; or but for standard (Gross under ADEA) Holding: following Gross's but for standard (1) causation in fact (but for causation) is a requirement of all tort claims, including workplace discrimination (2) When congress passed 703(m) , it partially codified Prince Waterhouse, but also rejected it to a substantial degree (3) Gross is instructive because it interpreted the same words, because of and because 703(m) did not amend either the ADEA or the retaliation provision (4) worried about too many retaliation claims

Hazen Paper v. Biggins

Facts: fired when he was 62 yrs. old, weeks before he was about to vest in pension plan. Hazen claimed that he was fired for conducting business with its competitors. Issue: Under the ADEA, is it lawful for an employer to fire an older employee when age is not the motivating factor? Rule/ Holding: Correlation is not enough if the two factors are analytically distinct from one another. If the employer can take account of one and ignore the other, the decision is not necessarily an age based decision. Under the ADEA it is lawful for an employer to fire an older employee when age is not the motivating factor.

Chamlers v. Tulon Company of Richmond

Facts: she was sending religious motivated letters to her fellow employees. She was in a position of power Prima Facie Case: (1) she has a bona fide religious belief that conflicts with an employment requirement; (2) she informed the employer of this belief; (3) she was disciplined for the failure to comply with the conflicting employment requirement Burden then shifts to the employer to demonstrate that it could not accommodate the P's religious needs without undue hardship. Conclusion: Second element of prima facie case is not met because she never informed the employer of her belief. Regardless, they would not have been able to accommodate her behavior. Knew the letters might cause her co-workers distress. Cannot allow religious beliefs to place this much of a burden on other employees

City of Los Angeles Dep't of Water & Power v. Manhart

Facts: women were forced to make larger contributions to the employee pension plan than their male colleagues. The department determined that, because women live longer than men, the women cost the company more in retirement benefits than the men and so must pay more into the plan. Since the employee contribution was taken directly out of the employee's paycheck, the female employees brought home less than the men. Issue: Does a policy that requires women to make larger contributions to a company's pension plan than men because women tend to live longer violate the Civil Rights Act of 1964? Holding: The distinction treats women different from men and it therefore violates Title VII. Many different factors influence longevity and the payment differential was solely gender-based.

ADA Coverage

Follows Title VII's coverage, procedure, and remedies 11th Amendment immunity for state employers Title II coverage split

EEOC v. Abercrombie & Fitch

Free Exercise wearing of a Hijab- protected - Issue: whether refusing to hire someone because of a religious practice that the employer could accommodate without undue hardship is only lawful if the applicant has informed the employer of her need for an accommodation - Motive and knowledge are separate things: An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed. - An employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions.

Post McDonnell Douglas

Honest belief: Most courts agree with the honest belief rule - if the D honestly believed in its reason, that's good enough, even if the reason turns out to be false (stealing)

Dothard v. Rawlinson

Issue: Is employer's policy of hiring only male prison guards for its male prisons justified by the BFOQ defense. Rule: BFOQ is a very narrow defense that allows intentional discrimination if sex or national origin is a bona fide occupational qualification for the job in question (cannot be based on threat to the woman herself or stereotypical assumptions) Holding: Because of the "rampant violence" and "jungle atmosphere" of the prison where a court had recently held that the conditions were constitutionally intolerable, and where 20% sex offenders are scattered throughout the prison in dormitory style areas, that women, by virtue of their very womanhood would threaten the safety and order of the prison. Being male is a bona fide occupation qualification for prison guards for the male prisons in Alabama because of safety concerns for the security of the prison.

Oncale v. Sundowner Offshore Service, Inc.

Issue: Whether an employee can bring a same-sex harassment claim? No conclusive presumption that a supervisor will not discriminate against an employee in the same protected group "Male on male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provision of our laws rather than the principal concerns of our legislators by which we are governed. Holding: Same sex sexual harassment is actionable. Conduct must be "because of" sex

Crawford v. Nashville

Issue: Whether the retaliation section protects an employee who speaks out about discrimination not on his or her own initiative but in answering questions during an employer's internal investigation (opposition). What happened: Rumors of sexual harassment by their employee relations director Hughes. When asked about Hughes, she gave several instances of sexually harassing behavior. The employer fired Crawford and two other accusers but did not fire Hughes Court: You can "oppose" something without instigating the report. Opposition can be passive Holding: There is no reason to doubt that a person can oppose by responding to someone else's question just as surely as by provoking the discussion, and nothing in the statute requires a freakish rule protecting an employee own her own initiative but not one who reports the same discrimination in the same words when her boss asks a question Reasonableness of Opposition Conduct - Retaliation provision does not protect ALL oppositional conduct. (McDonnell-Douglas) - Malicious actions that grossly violate company policy or conduct that is disloyal or excessively disruptive are not protected opposition Reasonable Belief that the Act Has Been Violated good faith belief

Staub v. Proctor Hospital

Issue: may an employer be held liable for employment discrimination based on the discriminatory animus of an employee who influenced, but did not make, the ultimate employment decision? Holding: If the supervisor performs an act motivated by animus that is intended by the supervisor to cause the adverse employment action, and if that act is a proximate cause of the adverse employment action, then the employer is liable.

Retaliation 704(a)

It shall be an unlawful employment practices for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this title, or because he had made a charge, testified, assisted, or participated in any matter in an investigation, proceeding, or hearing

Griggs v. Duke Power Company

Landmark Supreme Court decision stating that tests must fairly measure the knowledge or skills required for a job What happened: there were certain educational criteria that needed to be met, HS diploma and passing score Why disparate impact: Court says whites register far better on company's alternatives requirements than blacks because blacks have long received inferior education in segregated schools Court's Holding: "The act proscribes not only overt discrimination but also practices that are neutral in form but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude protected class cannot be shown to be related to job performance, the practice is prohibited.

EEOC definition of religion

Moral or ethical beliefs as to what is wrong and right; sincerely held

Opposition (Internal)

Objecting to employer behavior is less formal manner (usually complaining to HR or management)

706(g)(2)(b)

On a claim in which an individual proves a violation under section 703(m) and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court - may grand declaratory relief, injunctive relief, and attorney's fees and costs - shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment

English-only Rules

Permissible to require employees to be able to speak English fluently. - Also permissible to require employees to be bilingual. - Discrimination based on accent is generally prohibited, unless accent is so thick as to interfere with essential communication functions of the job. - Courts are split on English only rules.

Lauderdale v. Teas Dept. of Criminal Justice

Prong 1 of affirmative defense: did employer exercise reasonable care to prevent and correct promptly any sexually harassing behavior? - Does so if it has institutional policies and educational policies regarding sexual harassment. Prong 2 of affirmative defense: Plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise i.e., did the employer have reporting mechanisms

Reeves v. Sanderson Plumbing

Plaintiff's Prima Facie Case: 1. belongs to a protected class (over 40 years of age under ADEA) 2. he was otherwise qualified for the position of supervisor (some employers will try to dispute since he was fired for performance reasons but with the understanding that the PFC is supposed to be easy to meet, this shouldn't be an issue) 3. he was terminated 4. the court says that the employer successively hired three persons in their 30s to fill plaintiff's position Defendant's Burden LNR: - Evidence of shoddy record keeping and several attendance violations by 12 employees who should have been disciplined. Concern over unequal discipline leading to union grievances. Sanderson testified that she accepted recommendation of termination of Reeves because he "intentionally falsified pay records" Plaintiff's Evidence that D's Reason Was False: 1. He established that he properly maintained attendance records 2. he was not responsible for discipling employees 5th Circuit: not enough that plaintiff disproved defendant's reasons. Doesn't think Reeves had proven that age motivated the decision Supreme Court: disagreed, proving that the D's reason was false may be enough. The trier of fact MAY (but doesn't have to infer that plaintiff's proof that D's reasons were false means that discrimination is the real reason. Comments that did not qualify as "direct" evidence are nevertheless circumstantial evidence that could support drawing the inference of discrimination. Conclusion: given that the plaintiff established a prima facie case of discrimination, introduced enough evidence for the jury to reject employer's explanation, and produced additional evidence of age-based animus, there was sufficient evidence for the jury to find that employer had intentionally discriminated.

UAW v. Johnson Controls

Policy: All women pregnant or who are capable of bearing children will not be places in jobs involving lead exposure. Important Points: - Discrimination based on sex because of safety concerns is allowed only in narrow circumstances and a danger to the woman herself does not justify discrimination - Safety to Third Parties: If safety to third parties is at issue, third parties must be indispensable to the business like the prisoners or the passengers flying - Safety exception is limited to cases where sex or pregnancy actually interferes with the employee's ability to perform the job Holding: No BFOQ defense in this case because pregnancy does not affect the women's ability to perform the job, and safety concerns for third parties are only relevant if the third party is indispensable to the business

Sec 1981

Race

Religion Exemptions

Religious corporations, associations, educational institutions or societies may discriminate with respect to the employment of individuals of a particular religion. Ministerial exception

Family Responsibilities Discrimination: EEOC Guidelines

Remember: Parents are not a protected class, except in some states. Need to prove discrimination because of sex. - RULES: › o Cannot base decisions on stereotypes. o Don't need comparative evidence but still must have evidence that decision was based on sex. o Evidence of Discrimination: § Questions asked during interviews § Derogatory comments about working mothers § Unfavorable treatment § Whether employer deviated from workplace policies.

Hazelwood School District v. United States

Statistics: of 19,000 teachers employed in St. Louis area, 15.4% were black. Included St. Louis City, which had a 50% affirmative action program. Apart from that school district, 5.7% were black. Gov't's evidence: 1. History of alleged racially discriminatory practices 2. Statistical disparities in hiring 3. Standardless and largely subjective hiring procedures 4. Specific instances of alleged discrimination against 55 unsuccessful black applicants Proper method of statistical inference: 1. Determine proportion of blacks in appropriate labor market 2. Determine proportion of blacks hired over relevant period 3. Compare the two proportions for statistical significance and practical significance Takeaway Points: 1. How to define the relevant labor market? 2. Need to distinguish between disparity caused by pre and post Act hiring practices

Difference Between Individual Claims and System Claims

The inquiry regarding an individual's claim is the reason for particular employment decision, while at the liability stage of a pattern-or-practice trial, the focus often will not be on individual hiring decision but on a pattern of discriminatory decision-making

Comparator's Rule

The issue is whether someone similarly situated but outside of plaintiff's protected class was treated better Court's vary, but one popular view: comparable in all material respects, such as dealing with the same supervisor, engaging in similar conduct, and being subject to the same standards

Tademy v. Union Pacific Corp.

There were repeated racial slurs and things that occurred at the workplace Holding: reasonable jury could find the harassment alleged by P was sufficiently severe to alter the conditions of his employment and create an abusive working environment

Exceptions to at will employment

Title VII (race, color, national origin, and religion) ADA (age) ADA (disability) 1981 (race discrimination)

Section 702(a): Religion

Title VII shall not apply to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such entity

Proper Defendant

Title VII, ADEA, and the ADA apply to employment agencies and labor orgs, in addition to private employers

Etsitty v. Utah Transit Authority

Transgender is not a protected class and discrimination "because of sex" Doesn't decide the stereotyping theory because Etsitty cannot prove that the employer's reason for terminating her (using women's public restrooms) was pretextual

Pregnancy Discrimination Act of 1978

Treats discrimination based on pregnancy-related conditions as illegal sex discrimination Amended section 701 of Title VII: - (k) The terms "because of sex" or "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.

Western Airlines v Criswell

Western's Argument: FAA's age-60 rule for captains and co-pilots should be extended to flight engineers; should defer to Western as long as requirement was reasonable; rational basis should be the test because medical disputes can never be proved with certainty Rule: Employer asserting a BFOQ defense has the burden of showing that: 1) the age limit is reasonably necessary to the essence of the business, 2) employer is compelled to rely on age as a proxy for safety related job qualifications. Can show in one of two ways (1) that all or substantially all individuals excluded from the job involved are in fact disqualified, OR (2) that some of the individuals so excluded possess a disqualifying trait that cannot be ascertained except by reference to age.

Johnson v. Transportation Agency

What happened: - Unilateral affirmative action plan for promotions of employees favored a woman over a man. - Plan allows employer to consider sex as one factor if woman seeking promotion to traditionally under represented classification. - Job classification: skilled craft workers. 0/238 women in this job classification. - Long term goal: every classification should mirror the population. - Recognized that long-term goal was not realistic so adopting short-term goals. No set aside. Sex is just one factor. Weber Test: - 1st question: Is there a manifest imbalance? Does not have to be bad enough to create a prima facie case of liability. - 2nd question: Does the plan unnecessarily trammel the rights of male employees or create an absolute bar to their advancement? Holding: - Affirmative action plan using sex as one factor for promotional decisions is held to be valid under Title VII, using the test in Weber. - O'Connor's Concurrence: Should treat Title VII and constitutional cases the same. Employers should have to demonstrate a "firm basis" for believing that remedial action is required. • Scalia Dissent: Wants to overrule Weber. Lack of interest defense.

Meritor Savings Bank v. Vinson

What happened: According to Vinson, although her relationship with Taylor was initially strictly professional, Taylor began making unwelcome sexual advances toward Vinson shortly after she was hired. At trial, Vinson testified that she first refused Taylor's advances, but eventually agreed to engage in sexual intercourse with him because she feared losing her job. Over the course of several years, Vinson and Taylor continued having intercourse; additionally, Vinson testified that Taylor fondled her in front of other employees, exposed himself to her at work, and forcibly raped her several times. Vinson never reported the harassment to Taylor's supervisors or filed an official complaint with Meritor. Taylor denied the allegations and contended Vinson's accusations stemmed from a business dispute. The district court concluded that Vinson was not a victim of sex discrimination or sexual harassment, because she did not suffer any economic harm, and any intimate relationship she had with Taylor was voluntary. Court's response: relying on EEOC guidelines, Title VII is not limited to economic harm but was enacted to "strike at the entire spectrum of disparate treatment of women." Holding: Hostile environment claims are actionable. Unless there is quid pro quo, harassment must be severe or pervasive. Conduct must be unwelcome but merely consenting does not mean that it's welcome. Sexually provocative speech or dress can be relevant in determining whether the sexual advances were unwelcome.

O'Connor v. Consolidated Coin Caterers

What happened: P was 56 and replaced by a 40-year-old. Lower court held that he had not made out a PFC because he couldn't show that he was replaced by someone outside the protected class. Issue: Can an employee file an age discrimination suit under the Age Discrimination in Employment Act if his or her replacement is 40 or older? Rule: although the Age Discrimination in Employment Act of 1967 limits its protection to those who are 40 or older, it prohibits discrimination against those protected employees on the basis of age, not class membership. "That one member of the protected class lost out to another member is irrelevant, so long as he lost out because of his age. The latter is more reliably indicated by the fact that his replacement was substantially younger," wrote Justice Scalia.

Smith v. City of Jackson

What happened: Salary raises based on market wages. Those who were more junior were given proportionately larger raises than those who had more seniority. Most of the latter group were over 40. First Holding: Claims using the disparate impact theory can be brought under the ADEA. Diluted disparate impact theory because: Ward's Cove standard (particular employment practice) applies; and the RFOA provision means that the offending employment practice only needs to be reasonable, and does not need to meet the higher standard of business necessity. Second Holding: Trying to make salaries competitive with nearby cities, is reasonable.

Meacham v. Knolls Atomic Power Laboratory (2008)

What happened: disparate impact claim against employer for RIF that disproportionately affected older workers. Holding: employer has the burden of persuasion on the RFOA defense. Employer does not need to also prove business necessity.

Trans World Airlines v. Hardison

What was rejected: Several proposals rejected by the company: four days a week; leaving it empty; filling it with a supervisor or an employee from another area; and employing someone not regularly assigned to work on Saturdays, which would have required TWA to pay overtime. Plaintiff was discharged when he refused to work Saturdays. First Holding: Employer does not have to violate seniority system under collective bargaining agreement to accommodate employee's religious request Second Holding: An employer does not have to bear more than a "de minimis cost" to accommodate the religious needs of its employees - Not required to: pay other employees overtime or be short handed - Cannot preference religion - Only have to accommodate schedule issues if another employee voluntarily trades shifts with the employee with the religious conflict

paramour favoritism

Wilson v. Delta State Univ. (5th Cir. 2005): the court held that preferential treatment of a paramour, while unfair, is not sex discrimination for the simple reason that such treatment discriminates not only against men but against all other women in the world except that one paramour.

EEOC Regulations: Disability

• "Substantially limits" shall be construed "broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA." • "An impairment is a disability within the meaning of this section if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population." • List of impairments that will "consistently meet the definition of disability"