Employment Discrimination

QPQ

"Something for something" Courts require a quid pro quo plaintiff to prove: (1) A supervisor requested sexual favors (2) The subordinate employee rejected that request (3) The supervisor took adverse action against the subordinate; AND (4) The subordinate's rejection of the request caused/motivated the adverse action -Hicks v. Gates Rubber -Meritor v. Vinson

Chevron Deference

(1) Chevron Deference: requires the court to defer to an agency's construction of a statute, when the statute's language is ambiguous and Congress has not directly spoken to the issue -Requires deference when Congress delegated authority to the agency to makes rules carrying the force of law, the agency interpretation claiming deference was promulgated in the exercise of that authority, and the agency interpretation is not procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute

Chapter 11: Remedies

-Backpay -Reinstatement -Compensatory & Punitives -Limitations -ADEA & EPA -Section 1981

Statutory Interpretation

-Textualism: terms of the statute itself -Intentionalism: seeks to determine what the legislature intended when it created the law by considering the text as well as the legislative history -Purposivism: seeks to construe the statute in the way that best gives effect to the statute's underlying purpose

Affirmative Action

Aff. Action is an AD in discrimination cases

Retaliation: Federal Employee Protections

Allowed under Gomex Perez v. Potter

Mixed Motive in ADA Context

The ADA has a provision that makes available to ADA plaintiffs the same powers, remedies, and procedures set forth in 42 U.S.C. § 2000e-5 -Thus, the ADA cross-references the remedies set forth for Title VII mixed motive claims, which are found at 42 U.S.C. § 2000e-5(g)(2)(B) -However, the ADA does not reference the Title VII provision, § 2000e-2(m), which provides the substantive standard for considering allegations of mixed motive **We do NOT know that Price Waterhouse model applies in the ADA context -Same idea should flow over from the ADEA context-- there is NO Price Waterhouse model used -No mixed motive language in the ADA

BFOQ

Title VII BFOQ provision reads: It shall not be an unlawful employment practice for an employer to hire and employ employees....on the basis of his religion, sex, or national origin in those certain instances when religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. ADEA: Contains a similar provision for age. -Western Airlines -Dothard -International Union

Definition of Disability

o There are three ways that this can be established The ADA defines a disability as: (A) A major physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) A record of such an impairment; OR (C) Being regarded as having such an impairment •The ADAA clarifies that the courts should broadly construe the definition of disability under the ADA in favor of coverage

Types of Harassment

1. QPQ 2. HWE

Chapter 4: Disparate Impact

-DI Structure -Defining Disparity -Correct Comparison -Job-Related/Business Necessity -DI w/ ADEA -DI w/ ADA -DI Frameworks

Retaliation: 1981

Even though Section 1981 is silent, many courts have permitted Section 1981 retaliation claims.

Protected Classes-ADA

ADA: prohibits disability discrimination is a variety of contexts -Prohibits discrimination against a "qualified individual on the basis of disability" AND "his or her association with a person with disability" -ADA cases often turn on whether the plaintiff has a disability and is a "qualified individual" as those terms are defined by the ADA -Unlike Title VII and the ADEA where the plaintiff's membership in a protected group usually goes uncontested -Rehabilitation Act of 1973: applies to the federal government programs receiving federal assistance, and federal contactors

ADEA/EPA

ADEA,EPA claims can't get compensatory/punitives, but can get liquidated damages -Liquidated Damages: Doubling of ONLY backpay *Awarded to punish malicious or reckless discrimination Under ADEA, liquidated damages are deemed a legal remedy

Aff. Action plans scrutiny

For government actors AA plans based on (1) Race must be defended with strict scrutiny. (2) Sex must be defended with intermediate scrutiny.

DOE v. Cars Inc

Holding: The term "related medical conditions" includes an abortion. Note: This is only the law in 2 circuits. There is some tension with this holding, because some language of the PDA expressly disclaims any requirement that the employer provides insurance benefits for abortions.

Equal Pay Act (EPA): 1963

Prohibits certain types of pay discrimination based on sex

Motive v/ Content of Harassment

Oncale!!!

3 Pronged Definition of Disability & ADAAA

To prevail on an ADA claim, the P must show: (1) he is disabled (3 prongs); (2) he is qualified to perform the essential function of the job with or without accommodation; AND (3) he suffered an adverse employment action b/c of his disability -Horgan v. Morgan

After Acquired Evidence

Although the following case is presented in the context of age discrimination, after-acquired evidence may also be used to limit remedies under Title VII, ADA, and Section 1981 **If your employer knew about it, did you ever do anything on the job that would/could have gotten you fired? -McKennon v. Nashville

Pattern/Practice

At the liability stage of a pattern-or-practice the trial court will focus not on an individual hiring decision, but on a pattern of discriminatory decision-making. Pattern or practice cases are often brought on behalf of classes of individuals, either by private plaintiffs or by the government through the EEOC. -Teamsters -Hazelwood -Walmart

Grooming Codes

Standard for Grooming Codes: Do they comport with general societal good grooming codes. Exception: If grooming codes makes a gender look inferior to another gender, then that grooming code is stricken. Even w/ race neutral grooming policy: Dreadlocks are common for black people and suitable for black hair texture -Hair is a mutable characteristic so you can't use a cultural practice to define race

Cases after McDonnell Douglas:

Burdine: "The plaintiff's burden of establishing a prima facie case of disparate treatment is not onerous." Also, the "defendant's burden is only one of production" (not one of persuasion). Hicks: The burden in plaintiff's prima facie case is not one that takes into account persuasion or credibility.

Job Related/Business Necessity

Title VII does not prohibit an employer from using any professionally developed ability tests provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex, or national origin -Dothard

Section 1981-Remedies

Compensatory & punitives available -ER can challenge punitive damages award on DP grounds **Ratio of compensatory to punitive damages shouldn't exceed a single digit

Disability, Individuals, & Social Policy

Congress gave the EEOC rulemaking authority to define terms in the ADA and the ADAAA. The EEOC regulations are enforceable law just as much as the statutes. The EEOC says the terms "disability" , "substantially limits", and "Major Life Activity" is to be construed broadly in favor of expansive coverage. On the issue of disability, all precedent prior to 2012 may be dubious / questionable. Minimum Coverage: Under the ADA an employer must have 15 employees

"Because of"

Court emphasized that plaintiffs may prevail only by proving the harassment was because of or motivated by the target's sex or other protected trait •In a case where the harassment involves sexual demands or is otherwise sexual in content, it may often be easy to conclude that harassment is because of sex •For harassment cases involving sheer hostility with little or no ostensible sexual content, however, proving that a protected trait motivated the abuse can be less obvious. -Oncale

HWE

Courts generally require the hostile environment harassment P to prove that: (1) P belongs to a protected group; (2) P was subjected to unwelcome sexual harassment (3) the harassment was because of a protected trait; (4) the harassment affected a term, condition, or privilege of employment. -Harris

Similarly Situated

Courts have held that for employees to be considered similarly situated, they must be comparable in all material respects, such as dealing with the same supervisor, engaging in similar conduct, and being subject to the same standards -O'Connor case

Adverse Actions

Courts require that an action rise to a certain level of seriousness to be cognizable under the federal employment discrimination statutes -Courts have sometimes embodied this requirement of seriousness in the concept of "adverse action" or "adverse employment action" -Such courts would say that only adverse actions are cognizable under the employment discrimination laws

Sex PLUS

Courts sometimes use the term, "sex-plus" to describe such discrimination, where the protected trait PLUS an additional trait (here marriage) are being held against the employee.

Nat'l Origin

St. Francis College v. Al Khazraji: The Court concluded that if the respondent could prove that he was subjected to intentional discrimination based on the fact that he was born an Arab, rather than solely on the place or nation of his origin, or his religion Race=descendants of a common ancestor OR person who is genetically part of an ethnically or physiognomically distinctive subgroup of humans Section 1981 protects identifiable classes of persons who are subject to intentional discrimination solely because of their ancestry or ethnic characteristics.

Affirmative Action

• Executive Order 11,246 requires covered federal contractors to take affirmative action to ensure that applicants are employed and that employees are treated during employment, without regard to their race, color, religion, sex, or national origin State Action Doctrine: To trigger constitutional scrutiny in an affirmative action plan, there must be state/public employer. One cannot bring a constitutional equal protection or due process claim against a private employer.

Factors that usually invalidate selection procedures

(1) Concerns traits or skills not related to job (2) Requires demonstration of traits or skills higher than what the job requires. (3) Adopted based only on assumptions of validity, without any proof of why those assumptions are correct. (4) Does not accurately reveal whether candidate has the required traits or skills. (5) Concerns traits or skills that are only an insignificant part of the job (6) Validation was done with respect to a different job, but the job in questions differs in material respects from the job for which the test was validated.

Teamsters Remedies

(1) If government meets it's PFC, even before the defense has a chance to rebut the presumption, the court may then grant the remedy of prospective forward looking relief. Typically an injunction or declaratory judgment. But at this stage, the court cannot yet give individual relief. (2) The employer is then given the opportunity to rebut for every individual a legitimate nondiscriminatory reason for why the person was fired, not hired, not promoted, etc. (3) Qualified applicant need not have applied: If the person was deterred from applying due to the discriminatory process, then that applicant must show that he would have applied and was qualified, and then the employer has an opportunity to rebut a legitimate nondiscriminatory reason for why the person would not have been fired, hired, promoted, etc.

Government Employer Exceptions

(1) Indian tribes are not bound by the provisions of Title VII or the ADA (not tested) oTitle VII permits businesses or enterprises on or near an Indian reservation to have employment practices that give preferential treatment to an individual because he is an Indian living on or near a reservation (2) Certain tax-exempt bona fide private membership clubs are excluded from coverage under the ADA and Title VII! oEEOC Guidance, courts have required entities trying to fit within the private membership club exemption to establish that the club is: a club in the ordinary sense of the word is private, AND requires meaningful conditions of limited membership oOther courts rule considering the group's selectivity in membership, historically unique existence, distinct purpose, and non-profit status (3) Foreign employers operating within foreign countries are prohibited from discriminating against American citizens under Title VII, the ADEA, and the ADA Usually applies to: Employers that are incorporated in the US Employers with sufficient connections to the US to be considered an American employer oSection 1981 does NOT apply outside of the US oAmerican entities operating within foreign countries are not required to comply with the anti-discrimination statutes if the foreign country in which the employer is operating would prohibit such compliance

Remedies in MM cases

(1) May grant declaratory relief, injunctive relieve , and attorney's fees and costs demonstrated to be directly attributable to the mixed motive claim; AND (2) the court shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment.

DI w/ ADEA

(1) PF CASE: There is a neutral practice causes meaningful (disparate) impact -Use statistics -Demonstrates: means to meet the burden of production and persuasion **If you can show that the particular neutral practices cannot be separated, then they will be analyzed as one employment practice -Meaningful impact = ⅘ rule maybe **Used by courts BUT is not a mandatory legal standard (2) Employer MUST prove that neutral practice was a reasonable factor other than age -RFOA: if the employer can prove this, THIS IS THE END OF THE ANALYSIS! -Validation comes into play here -- is it a validated test here to prove there is a correlation between the test and the business job •Criterion-related validity •Content validity Remedies: Equitable relief -Smith v. City of Jackson

Beyond the Basics: Harassment

(1) Reeves v. C.H. Robinson Worldwide, Inc: the 11th Circuit held that hostility not directed at P, but directed at her "target group" (the group sharing her protected trait) may nevertheless support the P's hostile environment claim •(2) Lyle v. Warner Brothers Television Productions -Lyle accepted a position as a note-taker from the TV show "Friends." -The court stated that the D had forewarned P of the sexual nature of the show, the writers did NOT make any sexual comments toward her, and, in light of the studio's creative environment, the conduct at issue was not severe or pervasive enough to constitute harassment (3) Some scholars and D's have argued that the 1A should serve as a defense in discriminatory harassment claims -Robinson v. Jacksonville Shipyard: P. a female welder, argues that the employer created and encouraged a sexually hostile, intimidating work environment. Her claims was based on sexually suggestive pictures of women and remarks made by make employees and supervisors demeaning women. -The Court rejected the 1A argument defense: verbal harassment is not protected speech b/c it acts as discriminatory conduct in the form of a hostile work environment.

McDonnell Douglas framework REMIXED

(1) Reverse Discrimination: Some courts require that those seeking to prove a case of reverse discrimination establish 'background circumstances' sufficient to demonstrate that the particular employer has 'reason or inclination to discriminate invidiously against whites' (2) Reduction in Force: Some courts say the plaintiff must provide additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons.

Teamsters Statistical Analysis

(1) The court heavily relied on 40 specific employee testimonials of discrimination. The testimonies sought employment but (1) had their requests ignored, (2) were given false or misleading information about requirements, or (3) were not considered and hired on the same basis that whites were considered or hired. (2) The court also heavily relied on statistics to determine whether there was discrimination. I.e. In the entire workforce, 9% were blacks and Hispanics, but only 0.7% were blacks and Hispanics (and those were hired only after the litigation commenced). (3) Essentially, statistics plus corresponding witness testimony, is very convincing proof of discrimination. The court said that absent discrimination, the default expectation is that nondiscriminatory hiring practices will have a workforce in accord with statistics regarding the general population. (2) If the government meets its PFC burden, then there is a presumption of liability The defense thus needs to rebut the presumption, or lose. There are two main defenses to the above statistics: (1) Too small of a sample size to be statistically significant. (2) Evidence showing that the figures for the general population might not accurately reflect the pool of qualified job applicants.

Chapter 7: Religion & Accommodation

-Differences w/ Religious Discrimination -Defining Religion -Model of Proof w/ Religion cases -Reasonable Accommodation & Undue Hardship -Religious Employer Exception -Ministerial Exception -Religious Discrimination & Public Employers

4 Primary Statutes

(1) Title VII of the Civil Rights Act of 1964: provides protections against employment discrimination based on a person's race, color, national origin, religion, or sex. (2) The Age Discrimination in Employment Act (ADEA): prohibits age discrimination in employment. (3) The Americans with Disabilities Act (ADA): prohibits disability discrimination (4) 42 U.S.C. § 1981: protects against race discrimination in employment and other contexts.

Retaliation Elements

(1) Whether employee is engaged in a protected activity under Title VII (2) Whether employee suffered a materially adverse employment action; and (3) Casual link between protected activity and adverse employment action -which is to say that the protected activity motivated the adverse employment action Temporal proximity is the critical link in allowing causation If you have words said, definitely USE THEM Title VII, ADA, ADEA and the EPA all provide for retaliation claims.

Skidmore Deference

(2) Skidmore Deference: agency interpretations are not given controlling authority, but constitute "a body of experience and informed judgments to which courts and litigants may properly resort for guidance" -Court will consider the thoroughness of the agency's interpretation, the validity of its reasoning, the consistency with earlier and later pronouncements and "all those factors which give it power to persuade, if lacking power to control"

FRE 401 analysis here

(a) it has any tendency to make discrimination more or less probable than it would be without the evidence; and (b) the discrimination is of consequence in determining the action.

Chapter 9: Protected Traits & Special Issues

-Affirmative Action -Sex, Pregnancy, Maternal Wall -Equal Treatment of Pregnant Employees -FMLA -FMLA + Retaliation claims -Race & Arrest records -Grooming Codes

Chapter 2-Coverage of Statutes

-Core Concept: Protected Classes -Race & Color -Nat'l Origin -Religion -Sex -Age -Core Concept: Proper Defendant -Core Concept: Protected Individuals

Reasonableness of Oppositional Conduct-Retaliation

-Criminal activity is not protected; e.g. stall outs are not protected: Green v. MD -Conduct that is disloyal or excessively disruptive is not protected: Hochstandt v. Worcester -Taking malicious actions that grossly violate company policy are also not protected: Niswander v. Cincinnati Ins. Co. -o Courts refuse to protect employee conduct that "so interferes with the performance of his job that it renders him ineffective in the position for which he was employed: Hardy v. City of Tupelo, Miss.

Chapter 8: Disability Discrimination

-Disability, Individuals, & Social Policy -Definition of Disability -Actual Disability -Record of Disability -Regarded as Disabled -3 Pronged Definition of Disability & ADAAA -Qualified Individual -Reasonable Accommodation -Model of Proof -Direct Threat Defense -Drug & Alcohol Use -Medical Examinations -Burdens of Production/Persuasion in Disability Cases

Chapter 6: Retaliation

-Elements -Protected Activity -Reasonableness of Conduct -Reasonable Belief Act has been Violated -Materially Adverse Employment Action -Causal Link -3P Retaliation -Retaliation under 1981 -Federal Employee Protections

Federal/State Discrimination Claims

-Employees can bring claims under both federal and state laws -Employer is defined differently (11) -If less than 15 employees, do not fall under Title VII or ADA or a private employer of under 50 for the FMLA -Defines disability differently (11) -Certain states provide unique categories of individuals from discrimination (11) -Different remedies (11) -ADEA cannot recover punitive or emotional distress damages BUT some state statutes allow age discrimination statutes to recover both -Title VII the amount of punitive and emotional distress damages is limited by statutory caps BUT some states don't have caps -Some allow lawsuits against individual supervisors while others do not

Immigration Reform and Control Act (IRCA)

-Illegal for employers to hire undocumented workers and requires that employers verify a worker's status to legally work within the country -Prohibits discrimination on the basis of national origin -Applies to more than 3 employees -Title VII also contains prohibitions against national origin discrimination BUT only applies to 15 or more employees -IRCA requires that an employee proceed under Title VII -IRCA also prohibits citizenship discrimination against employees while Title VII does not

Chapter 3: Disparate Treatment

-Individual -McDonnell Douglas -Similarly Situated -Stray Remarks -Business Judgement -Same Decisionmaker/Same Class -Direct/Circumstantial Evidence -Core Concept: AA -Core Concept: MM -Intersectionality -Pattern/Practice -Core Concept: Aff. Action -BFOQ -After-Acquired Evidence -Intent

Other Fed. Discrimination Statutes

-NLRA -FLSA -EPA -FMLA -Rehabilitation Act -IRCA

Chapter 1-Introduction to Employment Law

-Primary Statutes -Statutory Interpretation -Administrative Deference -At Will Employment

Family and Medical Leave Act (FMLA)

-Provides unpaid leave for certain workers -Must meet eligibility requirements of FMLA -Only applies to employees who work for state, local, or federal governments OR private sectors of more than 50 employees -Only available if employee has a serious health condition, if a member of the worker's immediate family has such a health condition, or for birth/adoption -Requires employer to continue to make employer contributions to employee's health insurance -Sometimes requires that the employee be returned to the same or substantially the same job upon returning from leave -Some amendments provide unpaid leave for certain family members of individuals in the Armed Forces -provides 12 weeks of unpaid leave to certain employees to care for a newborn, to care for an adopted child, or to care for certain members of the worker's immediate family with serious health conditions. -FMLA provides protection for both male and female employees and it was enacted to alleviate workplace inequalities that existed because women traditionally bear more childcare and family care responsibilities.

Drug & Alcohol Use: Disability

-Qualified individual with a disability does not include any employee or applicant who is currently engaging in the illegal use of drugs -Alcoholism is a protected disability under the ADA. But an employee can take action against an employee if: (1) Employee is drunk on the job. (2) Misconduct related to being drunk on the job or (3) poor work performance related to being an alcoholic Note: The ADA makes it illegal to ask whether someone has a physical or mental disability.

Differences w/ Religious Discrimination

-Religion is different from race, color, national origin, and sex in that strictly speaking, religion is not an immutable characteristic. -Religion is also unique in that it is the only trait which requires that employers make a reasonable accommodation.

Chapter 10: Administrative & Litigation Procedures

-Step 1: Filing a Charge -Step 2: EEOc serves notice of charge -Step 3: EEOc investigates -Step 4: EEOC decides on charge -Step 5: EEOC issues right to sue letter -Step 6: Plaintiff files claim in court

Chapter 5: Discriminatory Harassment

-Types of Harassment -QPQ -HWE -"Because of" -Unwelcomeness -Severe/Pervasive -Motive v. Content of Harassment -Employer Liability for Harassment -Tangible Employment Action -Beyond the Basics: Harassment

Severe/Pervasive

-When the workforce 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 -There is an inverse relationship between severity and pervasiveness. If it is very severe (i.e. rape) it does not have to happen often (once could be enough). If the action happens all the time (i.e. something posted on the walls) it does not necessarily need to be as severe. -Tademy

Factors to determine hostile/abusive environment

1) Frequency of the discriminatory conduct (2) Severity of the conduct (3) Physically threatening or Humiliating -Not a mere offensive utterance. (4) Unreasonably interferes with employee's work performance. (5) Any Psychological harm to the employee

Griggs Developments

1. Albemarle v. Moody: after the P established a prima facie case, the employer would have the burden of proving that its tests are job-related AND if proffered, the employee could rebut the employer's showing by proving that "other tests or selection devices, without a similarly undesirable racial effect, would serve the employer's interest in efficient and trusty workmanship 2. Watson v. Fort Worth: To prove a disparate impact the plaintiff must identify "the specific employment practice that is challenged" and must establish statistical evidence of a kind and degree sufficient to show that the protected trait caused the disparity" AND subjectively hiring practices are included

Administrative Deference

1. Chevron Deference 2. Skidmore Deference

Admin Procedure Doctrines

1. Continuing Violations Doctrine: Last day of discrimination = "x" date to file with EEOC 2. Notice of Decision Rule: when P is notified of alleged discriminatory decision="x" date

Validity

1. Criterion-related validity studies -Uses empirical data to demonstrate that the selection procedure is predictive of or significantly correlated with important elements of job performance -Data gathered to show that individuals who performed at a certain level on a test were consistently able to perform their jobs at a successful level, while individuals who performed low could not -SAT, LSAT, ACT = does not test you on the skills you will do on the job 2. Content-validity studies: -Generally much easier to achieve than construct validity -Much easier to validate -Consists of data showing that the content of the selection procedure is representative of important aspects of performance on the job or which the candidates are to be evaluated -Those that measure the knowledge, skills, or abilities required for a particular job = much easier to validate than criterion-related

Step 5

180 days after the charge is filed, the EEOC must give a right to sue letter. EEOC regulations provide that the EEOC will issue a right-to-sue letter to the charging party on expiration of the 180 day period even if the agency has not yet finished its investigation if the charging party requests the letter Therefore, the employee can request a right a sue letter after 180 days have passed, and the EEOC will issue one. A party who files a Title VII lawsuit before getting the right-to sue latter will typically have the claim dismissed by the court for failure to exhaust administrative remedies After receiving a right-to-sue letter, an employee must sue within 90 days. 90 days are treated like a statute of limitations (1) Not suing within 90 days must be raised as an affirmative defense, or it can be waived.

Protected Classes-1981

42 U.S.C. §1981: prohibits certain types of race discrimination, providing that "all persons within the jurisdiction of the U.S. shall have the same right to make and enforce contracts as enjoyed by white citizens.

Hosanna Tabor v. EEOC

A church-school that fires a teacher with a disability falls within the ministerial exception to federal anti-discrimination laws under the Religion Clauses of the First Amendment. The church-minister relationship is different than the typical employer-employee relationship. The government cannot force a church to keep a minister or punish the church for firing her without violating the Free Exercise Clause of the First Amendment, "which protects a religious group's right to shape its own faith and mission through its appointments."

Howard v. Wolfe

A woman working for a radio station (w/ 7 employees) was fired when the radio owner's wife wanted to have her fired because she was a woman. **Title VII did not apply here, because an employer must have at least 15 employees for it to apply. Therefore, it was permissible to fire her.

MM w/ 4 Statutes

ADEA Mixed Motive Analysis: Mixed motive claims are not available: Therefore, use the default analysis of the McDonnell Douglas framework. ADA Mixed Motive Analysis: Use the default analysis of the McDonnell Douglas framework. The court has not spoken as to the plaintiff's burden in mixed motive cases for ADA cases. Because the ADA statute is written similarly to the ADEA, the court is likely to follow the same result as in Gross. Section 1981: Use the default analysis of McDonnell Douglas.

Protected Classes-ADEA

ADEA: prohibits employment discrimination based on age. 29 U.S.C. § 623(a) --The ADEA does not protect all employees against age discrimination --Only those employees who are 40+. 29 U.S.C. § 631(a) --Title VII and ADEA do not always prohibit discrimination based on the protected traits - both recognize certain affirmative defenses Exceptions: ADEA permits an employer to require compulsory retirement for certain bona fide executives and high-level policymakers who have attained the age of 65. § 631(c) **This permission extends only to individuals who have been employed as bona fide executives or in high policymaking positions for the two-year period immediately preceding retirement and who are entitled to certain levels of statutorily defined retirement benefits oEX: judges in NC are forced to retire at 72 ***ADEA also permits age to be taken into account in hiring and retirement policies for firefighters and law enforcement officers in circumstances described in the statute §631(j)

Protected Classes-Rehabilitation

ALL statutes prohibit retaliation in certain circumstances -An individual need not fall within a protected class to claim protection against retaliation **i.e., do not need a disability to claim retaliation under ADA

Reasonable Accommodation & Undue Hardship

Accommodation: The burden is on the employer to try and accommodate the employees' religious needs once the employer is made aware of the employee's conflict. •A fundamental question is whether the proposed accommodation requires the employer to bear an undue hardship in that the accommodation would impose on it more than a de minimis cost? -NO -Trans World Airlines -Asnonia

Legal Challenges to Affirmative Action

Affirmative action litigation in employment usually involves claims brought by majority workers, who contend they lost an employment opportunity because minority members were favored under an affirmative action plan. In general affirmative action cases may be divided into two categories: (1) Challenging affirmative action under constitutional Equal Protection Requires government action (2) Challenging affirmative action under Title VII Non-government action. In the absence of government action, the only federal law limitation on voluntary private employer affirmative action is Title VII. In fact, the defendant in Johnson v. Transportation agency was a government entity, but the plaintiff limited his claim to Title VII and no equal protection analysis took place.

Vance v. Ball State

An employee is a "supervisor" if -- for purposes of vicarious liability under Title VII -- if she is empowered by the employer to take tangible employment action against the victim **A tangible employment action effects a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits Cat's Paw liability: If the supervisor takes a tangible employment action on behalf of a suggestion of a non-supervisor, then that situation still counts as supervisor created liability. -Cat's paw liability occurs when a biased subordinate who lacks decision making power, uses the formal decision maker as a dupe, in a deliberate scheme to triggers a discriminatory employment action -Cannot use Cat's paw theory when the decision-maker conducts a meaningful and independent investigation of the information being supplied by the biased employee.

Reasonable Belief Act has been Violated

An employee may engage in proper opposition activity - such as by reporting harassment to management - but be mistaken about whether the challenged conduct (harassment) violated the statute This happens but if he or she has a reasonable belief that the act has been violated, it is okay -Participation: blanket protection, even where the underlying employer conduct did not actually violate the statute or even occur at all -In participation cases, the employee is protected as long as the employee filed a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the act Opposition: Courts generally protect opposition activity only if the plaintiff reasonably believed that the challenged employer conduct violated the statute -Clark

Regarded as Disabled

An individual meets the requirement of being "regarded as having such an impairment" if the individual establishes that "he or she has been subjected to an action prohibited under this Act 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" -The plaintiff is protected from discrimination because of his impairment whether real or perceived Person does not even have to have anxiety, but if you perceive that they do, they are regarded as having a mental impairment -the ADAAA does not prohibit an employer from taking an action if it regards an individual as having an impairment that is transitory and minor in nature, which the statute defines as having a duration of 6 months or less Ex: broken leg ***The amendments clarify that "regarded as" plaintiffs are not entitled to reasonable accommodation -In order to be entitled to a reasonable accommodation, an individual must have an actual disability

Qualified Individual

An individual who with or without reasonable accommodation, can perform the essential functions of the employment position. -Consideration must be given to the employer's judgment as to what functions of a job are essential. (1) whether individuals in the P's position are actually required to perform a certain job function, and (2) if individuals are required to perform the job function, whether removal of the job function would fundamentally alter the job •In other words, the ADA may require an employer to terminate a non-essential function of an employee's job, if the employer cannot perform the function b/c of a disability (3)In determining whether a job function is essential, the amount of time spent on the job performing the function is relevant -Hennagir

Boyer-Liberto v. Fountainbleu

An isolated incident of harassment, if extremely serious, such as the alleged use of a racial slur by the employee's manager that was directed at the employee, could create a hostile work environment, and an employee was protected from retaliation when she reported an isolated incident of harassment that was physically threatening or humiliating, even if a hostile work environment was not engendered by that incident alone.

Remedies

Before CRA 1991 only equitable remedies were available plaintiff Those included: Backpay, Reinstatement, Atty's fees, and costs Only judges can award equitable remedies

Abercrombie v. EEOC

And its "because of" standard is understood to mean that the protected characteristic cannot be a "motivating factor" in an employment decision. §2000e-2(m). Thus, rather than imposing a knowledge standard, §2000e-2(a)(1) prohibits certain motives, regardless of the state of the actor's knowledge: An employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions. -Title VII contains no knowledge requirement.

Other Admin/Litigation Procedures

Arbitration: Arbitration contracts are generally upheld, unless they are found to be unconscionable. Beginning with the Supreme Court's 1991 decision in Gilmer, courts have tended to uphold arbitrated agreements. It is a slim chance, but a court might decide not to enforce an arbitration agreement if the employee did not accept the agreement, there was no consideration, the agreement was not conspicuous, or any other reason that could be unconscionable. EEOC is not bound by an arbitration agreement. Settlement: Settlements are typically money paid by the employer to the employee in exchange for the employee releasing the employer from liability as to that claim. Must have a release and waiver document during a settlement. ADEA Settlement Special Rules: See the Older Workers Benefits Protection Act (OWBPA) (Do not need to memorize the factors for an exam, but know that these special rules exist). Jury-Waivers: Treated the same as arbitration agreement by the court. If possible, as the plaintiff, do not try an employment discrimination case by a federal court judge.

Sex

As a class, women live longer than men as a class. All Women therefore had to pay 14.84% higher towards the pension fund. Holding: The problem with making all women pay 14.84% higher violates Title VII because it discriminates against every single woman individually. It uses class as a proxy to discriminate against women individually.

Pattern/Practice Framework

Basic issue is that the plaintiff has to find two groups to compare each other to show that the qualified at-issue group is too small in comparison. The difference in percentage between the two groups has to be statistically significant. (2 to 3 or more standard deviations) It is typical for the defense to use the comparable group not as the total qualified people in the area, but only the percentage that actually applied (because that group would be smaller).

Compensative/Punitive Remedies

Can be awarded in Disparate Treatment and ADA cases -Comp: Pay for out of pocket victim expenses and emotional harm -Punitives: To punish employer who has committed especially malicious/reckless act of discrimination

Limitations on Damages

Check supplement for monetary limitations on compensatory & punitive damages -Aggregated for the purposes of these caps -Caps don't include back/front pay Kolstad v. American Dental" If ER made good faith attempts to comply w/ Title 7, then employer not liable for discriminatory acts of material agents punitive damages award -Punitives not available in reasonable accommodation case if employer made good faith attempt, even if unsuccessful to reasonably accommodate EE

Model of Proof for DI claims

Civil Rights Act of 1991: Modified Title VII to expressly include disparate impact as a claim under Title VII. 1. Plaintiff must show in a PFC that a specific practice caused the impact. (80% rule goes here). 2. Employer must then demonstrate/prove that the practice or procedure was job related for the position and consistent with business necessity. •Criterion-related validity •Content validity 3. Plaintiff can then rebut by proving that other practices/tests with less discriminatory impact would serve the employers interest, but the employer failed to adopt the other practice/test. Congress did not Amend the ADA or ADEA with regard to disparate impact claims.

Tangible Employment Action

Close temporal proximity: If the tangible adverse employment action occurs within several weeks of the rejection of the advances, then that creates an inference that the supervisors motivation was the subordinate's rejection. Ask if there has been a tangible job action: A firing, a hiring, a promotion or demotion. If so, could be Quid Pro Quo. If not, could only be Hostile Environment

Direct/Circumstantial Evidence

D: If the plaintiff is able to demonstrate through direct evidence that an employer took an action because of a protected trait, the employer usually is unable to avoid liability UNLESS it has a defense or affirmative defense or can show that the statute does not apply to the situation at hand C: Requires the person who hears the evidence to make an inference

Defining Religion

Defining Religion: Sincere belief that occupies in the life of the believer a parallel place to that of God in traditional religions. •The EEOC defines religious practices to include "moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views." •The fact that the religious group to which an individual profess belonging does not espouse a particular belief or practice does not prohibit that belief or practice from being considered a religious one Title VII: The term "religion" includes "all aspect of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee's or prospective employee's religious observance or practice without under hardship on the conduct of the employer's business. -U.S. v. Seger

Retaliation Sec. 704(a)

Discrimination for making charges, testifying, assisting, or participating in enforcement proceedings: It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment... Opposition Clause: because he has opposed any practice made an unlawful employment practice by this subchapter, Participation Clause: or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

Individual Disparate Treatment

Disparate Treatment is intentional employment discrimination. This action was the the "because of" the protected trait (race, sex, national origin, etc). **Models of proof that courts construct to use to answer the question:

Disparate Impact

Disparate impact claims allege that a facially neutral practice has a disparate impact on a protected group. -Available under Title VII, the ADEA, & ADA -Not available under Section 1981 -Disparate impact was first recognized in Griggs c. Duke Power Co. -ADEA disparate impact claims differ from Title VII disparate impact claims

Step 3

EEOC Investigation: EEOC has180 days to investigate under Title VII, after that an employee can request a right to sue letter. However, there tends to be a huge backlog at the EEOC. From the time the charge is filed, sometimes it takes the EEOC up to three years to investigate.

Step 2

EEOC files notice of charge to employer within 10 days Position Statement: Employer gets 30 days to submit back to the EEOC with a position statement, where the employer must explain factually why discrimination did not occur. This triggers the EEOC's investigative authority EEOC does have subpoena power

Step 4

EEOC's Determination will issue one of two possible findings: (1) Reasonable cause to believe that discrimination has occurred or (2) No reasonable cause to believe that discrimination has occurred Receipt of this letter triggers the 90 day to file period Even without reasonable cause, plaintiff still has right to sue within 90 days If there is reasonable cause, plaintiff has 90 days to sue Otherwise EEOC will find no reasonable cause, but plaintiff still has 90 days to sue Admitting EEOC's Determination into evidence: If the EEOC determines in favor of the plaintiff, the plaintiff will want to get that determination admitted into evidence. Likewise, If the EEOC determines in favor of the defendant, the defendant will want to get that determination admitted into evidence. -However, the other side would argue that the evidence should be barred by FRE 403. The main argument is would be that the EEOC did not conduct a complete investigation when it made its determination.

Protected Classes-EDNA

ENDA: Employment Non-Discrimination Act - none of the federal statutes explicitly prohibits discrimination on the basis of sexual orientation, marital status, or status as a parent -This statute would add federal protections against sexual orientation and gender-identity discrimination in employment -Congress has not passed it yet - giving it serious consideration -Some courts allow gender-ID or sexual orientation claims to proceed under Title VII when plaintiff alleges employer engaged in sex stereotyping **Remember: states, counties, and municipalities may provide more or different discrimination protections than those enumerated in fed. stats.

Model of Proof w/ Religion cases

Employees may use the same theories--disparate treatment and disparate impact--in asserting religious discrimination claims, as they can for other protected traits under Title VII -Disparate treatment cases based on religion proceed along the same lines as disparate treatment cases based on race or sex -A key distinction is that some courts alter the McDonnell-Douglas framework to require the plaintiff to prove that the employer had knowledge of the plaintiff's religion or religious practices when knowledge is disputed oThis is because a person's religions, as opposed to a person's race or sex, is often neither readily identifiable nor obvious -Disparate impact cases based on religion are rare but may be factually possible -In many cases, a particular claim of religious discrimination is best viewed as raising either a disparate treatment claim or an accommodation claim -Chalmers v. Tulon

Age

Employer had a practice of firing an employee after working around 9.5 years so that the pension plan would not vest. Holding: The policy is illegal under ERISA, but not illegal under the ADEA. Those under age 40 could have been affected by the practice to fire if they had been nearing close to 10 years of working for the company. As a result, the employer's decision to fire is motivated by a factor that is not necessarily age.

Direct Threat Defense: Disability

Employer may take action against employee if the employee is a direct threat to others in the workplace Direct Threat means "significant risk" to the health and safety of others in the workplace that cannot be eliminated by reasonable accommodation Factors: (1) Nature of the risk (2) Severity of the potential harm (3) Likelihood that the potential harm will occur (4) Imminence of the potential harm

Fair Labor Standards Act (FLSA)

Enforced by the Department of Labor - covers most employees in both the private and public sectors, -regulates minimum wage for employees and establishes rules for payment of overtime -Limits the number of hours that an employee under 16 can work -Limits employees under 18 from working in certain dangerous jobs

Protected Classes-EPA

Eq. Pay Act prohibits certain types of wage discrimination based on sex

Nat'l Orgin

Espinoza v. Farah: Issue: Whether a Title VII claim existed for a Mexican citizen who had been rejected from employment based on citizenship Court said no indication in the record that Farah's policy against employment of aliens had the purpose or effect of discriminating against persons of Mexican national origin. Nothing in Title VII makes it illegal to discriminate on the basis of citizenship or alienage There is no evidence in this case that citizenship discrimination is a pretext to national origin discrimination

Ricci v. DeStefano-Avoiding DI Liability

Facts: 118 firefighters took a test to be promoted to Lieutenant or Captain. A total of 9 black firefighters passed, but because promotions depended on ranking the highest scores, 0 black firefighters were promoted. The city threw out the results of the test because they feared a disparate impact lawsuit, and then the white and Hispanic firefighters who passed sued for disparate treatment. Holding: Race-based action like the City's in this case is impermissible under Title VII • unless there is strong evidence that the test result is not job related and consistent with business necessity or there is strong evidence that the employer could have achieved its objectives by deploying some other selection mechanism that would have had less of a disproportionate impact Note: Equal Protection Clause violation was raised in Ricci. If the employer is a state actor, then violations of constitutional provisions apply.

Clark v. Breeden

Facts: A male supervisor met with a male and female employee. In reviewing an application, the supervisor read out loud "I hear making love to you is like making love to the Grand Canyon." The female employee felt uncomfortable about the comment being said in her presence (not directed at her), and made a complaint to another supervisor. She claims she was punished for making the complaint. Holding: Courts protect opposition activity only if the plaintiff reasonably believed that the challenged employer conduct violated the statute. The Supreme Court is essentially requiring the reasonable person with having knowledge of the law of what violates Title VII. -• Respondent's supervisor's comment, made at a meeting to review the application, that he did not know what the statement meant; her co-worker's responding comment; and the chuckling of both are at worst an "isolated incident" that cannot remotely be considered "extremely serious," as our cases require

Western Airlines v. Criswell

Facts: Airlines were required under the Federal Aviation Administration to fire pilots and copilots once they hit age 60. Western Air lines were not required to fire flight engineers at age 60, but they had a policy to mandatorily retire them as well at age 60. Two pilots hit age 60, and were denied reassignment as flight engineers but were denied under the airline policy. The airline argued the policy as to flight engineers was to promote safety. -Created BFOQ standard -The BFOQ standard adopted is one of "reasonable necessity."

Price Waterhouse v. Hopkins

Facts: Anne Hopkins was one of 88 women up for promotion. In part she was not promoted for the legitimate reason that she was aggressive and abrasive. Also, she was criticized for being masculine looking and not womanly enough. She was not promoted. As a result of not getting promoted, she resigned. -Constructive Discharge: Is the equivalent of firing, where a reasonable person in the same or similar circumstances would have felt compelled to resign. Holding: In a Title VII mixed motive case (1) Plaintiff must prove whether gender was a motivating factor in discriminating. (2) If yes, then the employer has the burden of proving an affirmative defense that even absent the illegal discrimination, the employer would have made the same decision anyways. If so, then employer wins outright. **Burden of proof w/ the AD

Back v. Hastings

Facts: Back worked as a school psychologist at an elementary school. She was on track to get tenured after 3 years. She had excellent evaluations, until she got pregnant near the end of her tenure. Her two female higher up supervisors made comments saying that "she should hold off getting pregnant" and treated her less favorably in person and in her evaluations. She was not given tenure and was fired. Reasoning: Employer said the LNDR for not getting tenure was that Back was "inconsistent, defensive, difficult to supervise, parental complaints, and inaccurate reports." Back responded with relying on Price Waterhouse, saying that the supervisors stereotyped remarks are evidence that gender played a part in the adverse employment action of her getting fired. The court agrees with Back. Holding: Back produced sufficient evidence to defeat summary judgment.

Griggs Power v. Duke

Facts: Before Title VII was passed Duke Power facially discriminated against blacks. On the date that Title VII became effect, Duke instigated a policy to get employment in a higher paying department an employee would have to have a high school diploma and to pass an intelligence test. The two requirements disproportionately made blacks less qualified for employment. Rule: Title VII prohibits not only overt discrimination, but also practices that are fair in form, but discriminatory in operation. The essence is business necessity. If an employment practice which operates to exclude a protected group cannot be shown to be related to job performance, the practice is prohibited. Test: What Congress has forbidden is giving testing devices or measuring procedures controlling force unless they are demonstrably a reasonable measure of job performance. -INTENT DOESN'T MATTER HERE

Walmart v. Dukes

Facts: Class action lawsuit where class of 1.5 million women who claim were not hired as Wal-Mart managers due to their sex. Wal-Mart had given the regional representatives who would hire store managers practically complete discretion. Holding: No, the requirement of commonality was not met so the class cannot be certified. The plaintiff's should have narrowed the class to those who wanted to be managers, but were denied the opportunity. oThe Court explained that there must be SOME GLUE holding the alleged reasons for all the allegedly discriminatory decisions together •Post Wal-Mart: -Numerosity requires 20-25 class members -If you can find the glue, smaller number of decision makers (departmental practice, etc), showing that women or minorities are not where they should be then we have a pattern or practice suit

Desert Place v. Costa

Facts: Costa, a woman, got into a fight in an elevator with another employee, a man. Costa was fired, but the other man was not fired. Costa alleges discrimination under Title VII on the basis of sex. Reasoning: Court relies on the 1991 act which unambiguously states that a plaintiff need only "demonstrate" that the employee used a forbidden consideration with respect to "any employment practice." On its face, the statute does not mention, much less require that a plaintiff make a heightened showing through direct evidence. Holding: Under Title VII, direct evidence is not required. A plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that "race, color, religion, sex, or national origin was a motivating factor for any employment practice."

Crawford v. Nashville

Facts: Crawford, a female, was harassed when her male supervisor would "grab his crotch and say 'You know what's up' and would repeatedly "put his crotch up to her." The employer held an internal investigation, and Crawford reported the supervisor's activity to the employer. Crawford and 2 supervisors were fired after the investigations were over. Holding: Crawford's conduct of reporting harassing conduct to an employer during an internal investigation is covered by the opposition clause.

Johnson v. Transportation Agency

Facts: Diane Joyce and Paul Johnson both wanted to apply for a dispatch position. Both were qualified. In interviews Johnson ranked 2nd and Joyce ranked 3rd. Joyce contacted the County's Affirmative Action Office, and the coordinator intervened so that Joyce, and not Johnson was promoted. Johnson Rule: Johnson (plaintiff) has to first establish whether (1) consideration of the sex (or race) of applicants for the position (road dispatch) was justified by the existence of a manifest imbalance that reflected underrepresentation of women in traditionally segregated jobs -The definition of manifest imbalance need not rise to the level of a pattern or practice case where statistics plus anecdotal evidence shows 2-3 standard deviations of difference. Simply put, the statistical differences do not need to be as egregious to establish a manifest imbalance. OR (2) Whether the Agency Plan unnecessarily trammeled the rights of majority (males) employees or created an absolute bar to their advancement. Rights of a majority When a majority worker is laid off, that is more of a situation where the rights of the majority are trammeled. OR (3) The plain is being used to attain gender / racial imbalance, and not maintain it.

Dothard v. Rawlinson w/ DI

Facts: Female was denied employment as Alabama prison counselor because she failed to meet the minimum 120-pound weight requirement and a 5'2'' height requirement. Reasoning: The 120 pound minimum weight requirement and 5'2'' height requirement excluded at least 40 times more women than men. Height and weight was meant to be a proxy for strength. But if strength was what was necessary to be a prison counselor, then the applied test should have been a strength test.

Hazelwood v. US

Facts: Government brought a pattern or practice case against Hazelwood school district for not hiring qualified black teachers. The percentage of newly hired black teachers in Hazelwood (3.7%) was lower than the St. Louis County percentage (5.7%) and much lower than the St. Louis County & St. Louis City percentage (15.4%). Rule: When special qualifications are required to fill particular jobs, comparisons should be made to the group of individuals who possesses the necessary qualifications, not the comparisons to the general population. Rule: If the difference between the expected value and the observed number is greater than two or three standard deviations, then there can be made the inference that the qualified group with the protected trait was intentionally discriminated against. Note: Unfettered discretion with results which are not in accord with comparable statistics leads to the inference that there is discrimination.

Gross v. FBL

Facts: Gross, 56, was given less job responsibility when some of his job responsibilities was given to another employee who was 40 years old. Holding: A plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the "but-for" cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has provided some evidence that age was one motivating factor in that decision. *RFOA provision

Trans World Airlines v. Hardison

Facts: Hardison had a sincerely held religious belief to not work on Sabbath (Saturday). There was a union based seniority system which determined when someone would work. The employer tried to accommodate him by allowing him to swap work schedules with other employees, but at times Harrison was too low in the union's seniority based schedule preference to be able to get off work on a Saturday. Harrison did not go to work one Saturday where he was scheduled, and he was fired for it. Issue: Whether the airline (TWA) failed to reasonably accommodate Hardison's religious belief to not work on Saturday. Holding: To require an employer to bear more than a de minimus cost in order to reasonably accommodate an employee's religious belief or practice is an undue hardship. -Essentially, an employer is not required to spend money to accommodate an employee. Note: The ADA differs in that it does not have a de minimus cost rule.

Hennagir v. Morgan Services

Facts: Hennagir was a physicians assistant for 8 years for the Department of Corrections (DOC) with the prisons. She had lots of medical impairments: lupus, osteoarthritis, rheumatism, fibromyalgia, and many more. Because a medical worker was attacked by an inmate, DOC made a new requirement to get a fitness certification. Hennagir could not pass because of her disability. Holding: An essential job function inquiry is not limited as of the individual's hire date. The ADA does not limit an employer's ability to establish or change the content, nature, or functions of a job. The risk of an inmate attack is always present, so the new fitness requirement became an essential function of the job. Here, the court is deferring to the employer's business judgment as to what is an essential job function.

Horgan v. Morgan

Facts: Horgan was HIV positive and had worked for the company for many years. Once he disclosed he was HIV positive to his supervisor, the supervisor said to Horgan that he "needed to recover," that he "should go on vacation" and that he "should leave the plant immediately." Horgan was then fired the next day by an email sent to all the general manages. Holding: Yes, under the amendments made through the ADAAA, HIV is a physical impairment because "an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active." Also, Congress said the issue of "whether an individuals impairment is a disability under the ADA should not demand extensive analysis." HIV, substantially limits a major life activity because it affects his entire immune system.

International Union v. Johnson Controls

Facts: Johnson controls was in the battery making business and had a facially discriminatory practice against hiring women who were fertile from battery making jobs where one could be exposed to high levels of lead. Plaintiffs were fertile women. Reasoning: The policy is facially discrimination because on its face it is discriminatory on the basis of gender against fertile women. Because of the Pregnancy Discrimination Act (PDA), for a case brought under Title VII, the protected class of 'sex' includes protection against discrimination on the basis of pregnancy. A BFOQ must relate to the essence (or central mission) of the business. In pregnancy cases, the safety exception is limited to instances in which sex or pregnancy actually interferes with the employee's ability to perform the job. Unless pregnant employees differ from others in their ability or inability to work, they must be treated the same as other employees for all employment-related purposes. Holding: The PDA prohibits an employer from discriminating against a woman because of her capacity to become pregnant unless Her reproductive potential prevents her from performing the duties of her job.

University of Texas v. Nassar

Facts: Nassar was a research physician at the University of Texas. Nassar's supervisor, Lavine, was biased against him in that she made comments that Middle Easterners and Arabs were lazy. Lavine also harassed him by criticizing his work. Nassar complained to Dr. Fitz, who worked with the university, but nothing was done. Nassar resigned, and then got a job offer from the hospital. Dr. Fitz then wrote to the hospital that per the agreement only University Professors should be hired. Nassar claims Dr. Fitz wrote to the hospital based off animus towards him because of his race/national origin. Holding: No mixed-motive retaliation claims are allowed. Employee retaliation claims can only be brought if the 'but for cause' of the employer's actions was retaliation on the basis of the protected trait.

Oncale v. Sundowner

Facts: Oncale was a male oil rig worker. Other may workers on an oil right verbally and physically assaulted him on a regular basis. Holding: (1) There can still be a Title VII claim even if both the harasser and the victim are of the same sex. (2) Harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. (3) Title VII only forbids behavior so objectively offensive as to alter the "conditions" of the victim's employment.

Asnonia BOE v. Philbrook

Facts: Philbrook was a teacher who needed to take days off for religious observances. The school provided a reasonable accommodation, but Philbrook insisted on a plan he recommended would be a better reasonable accommodation. Holding: When the employer has already reasonably accommodated the employee's religious needs, the statutory inquiry is at an end. The employer need not further show that each of the employee's alternative accommodations would result in undue hardship.

O' Connor v. Consolidated Corp.

Facts: Plaintiff was 56, and was replaced with someone who was 40 years old. Issue: Whether plaintiff has no PFC, because the replacement was within the protective class (40 years old or more). Reasoning: The language of the ADEA does not ban discrimination against employees because they are aged 40 or older; it bans discrimination against employees because of their age, but limits the protected class to those who are 40 or older. The fact that one person in the protected class has lost out to another person in the protected class is thus irrelevant, so long as he lost out because of his age. Holding: The fact that a replacement is substantially younger than the plaintiff is a far more reliable of age discrimination than is the fact that the plaintiff was replaced by someone outside the protected class. (Age gap is the most important requirement). Substantially Younger requirement: (1) Less than 5 years, is not enough (practically per se) to be substantially younger. (2) Between 5-7 years is the middle ground. It can be argued either way by either side. (3) 8 years or older is generally enough to be substantially younger. Know that a case becomes stronger the greater the age gap.

Harris v. Forklift

Facts: President of a company harassed his female forklift workers by making rude comments like "let's go to the Holiday Inn to negotiate your raise" and by throwing money on the ground and ask them to pick it up. Holding: So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, there is no need for it to be psychologically injurious. -Objective OR subjective

Dothard v. Rawlinson

Facts: Prison passed regulation which did not allow women to work in maximum security prisons which were men only. A woman who was rejected as a correctional counselor for a men's maximum security prison sued. The Alabama prison had especially deplorable and dangerous conditions. Majority: The BFOQ is a narrow exception, but it applies here. The Alabama prison was characterized by rampant violence and a jungle atmosphere. The BFOQ of being male is reasonably necessary, because having women present in that environment would be a danger to the prison environment because the presence of women will arouse the prisoners to unruly and dangerous behavior. Dissent: 2 wrongs do not make a right. Because the Alabama prison condition is horrific and unconstitutional, is not an excuse to then discriminate against women. Alabama needs to fix the prison situation, not unlawfully discriminate against women.

Tademy v. Union Pacific

Facts: Tademy, a black employee, for 8 years suffered many racial issues like the N word being written on his locker and the bathroom, the supervisors ignoring him because of his race, and a noose being hung in his presence to the point where he vomited. Tademy reported all the offenses to management, and management never fully investigated or resolved the problems. Holding: The conduct was severe and pervasive enough: (1) Severe because the noose and the phrase "hang all N*****s" was very offensive and (2) pervasive enough because the conduct lasted for 8 years.

Connecticut v. Teal

Facts: The eligibility test here discriminated against blacks because blacks only passed the test at a 68% rate of the passing whites AND The employer argued that while the test discriminated against blacks, the employer chose more blacks than whites from the qualified pool, SO taken AS A WHOLE, the process did not result in a disparate impact Generally applies in 2 stage hiring practices: (1) In first stage significant percentage of people in protected class were excluded. (2) But for those in the protected class who made it through to the second stage, they were hired in relatively equal percentage. Therefore, as a whole the process did not result in disparate treatment. Supreme Court rejected the Bottom Line Defense: Because the test discriminates on some individuals of a protected trait from reaching the second stage. Rule: The employer violated Title VII to plaintiffs unless the employer could demonstrate that the exam in question was not an artificial, arbitrary, or unnecessary barrier, but measured skills related to effective performance as a supervisor

In re Union Pacific

Facts: The employee healthcare plans excluded both male and female contraceptive methods and devises. Holding: (1) The plan limits contraceptives for both men and women alike, so there is no Title VII Violation. (2) Contraception is not "related to" pregnancy for PDA purposes because contraception is a treatment that is only indicated prior to pregnancy.

Intl' Brotherhood v. Teamsters

Facts: The government brought action against Teamster for engaging in a pattern-or-practice of discriminating against blacks and Hispanics when hiring line drivers. Plaintiff's Burden: The Government has to establish by a preponderance of the evidence that racial discrimination was the company's regular operating procedure, rather than the unusual practice. **The government has to prove more than the mere occurrence of isolated or "accidental" or sporadic discriminatory acts.

Faragher v. Boca Raton

Facts: The male lifeguards, one of them a supervisor, would repeatedly touch the bodies of female employees without invitation. Faragher (a female lifeguard) complained to another lifeguard employee (a non-supervisor). The City had a sexual harassment policy, but failed to distribute it to the lifeguard department. Holding: An employer is vicariously liable for actionable discrimination caused by a supervisor, but subject to an affirmative defense that 1) employer had exercised reasonable care to avoid harassment and to eliminate it when it might occur, and 2) the complaining employee had failed to act with like reasonable care to take advantage of the employer's safeguards and otherwise to prevent harm that could have been avoided

Tysinger v. Zanesville

Facts: Tysinger had worked 8 years for a police department. She got pregnant and was concerned for the safety of her child because of concerns about "pushing vehicles and fighting with suspects." She requested a more clerical type job while she was pregnant, but the police station would not accommodate. They instead let her take leave while she was pregnant. Her job was held open for 9 months and she returned to work. Holding: To satisfy the PDA all the employer has to do is to treat the pregnant person equally as other people similarly situated in their ability to work. The PDA does not create an affirmative obligation on the employer to provide a reasonable accommodation for pregnancy. Simply put, the same benefits given to other employees, have to also be given to pregnant women. Pregnant women, however, do not get any additional preferential treatment other employees do not get.

Vande v. State of Wisconsin

Facts: Van Zande was paralyzed from the waste down. She had clerical duties. The employer made a ton of accommodations for her: changed the lockers, updated the bathroom, gave her a new chair, and made many other changes to make it all wheelchair accessible. They allowed her to work at home when she was sick, but made her take sick leave for that time. She also demanded that the kitchen sink be lowered from 36 inches to 34 inches, because washing her coffee cups in the bathroom made her feel stigmatized. Holding: An employer does not have a duty to expend even modest amounts of money to bring about an absolute identity in working conditions between disabled and nondisabled workers.

Meritor v. Vinson

Facts: Vinson, a bank assistant, claimed that her supervisor demanded her for sexual favors, had intercourse with her 40 to 50 times, and forcibly raped her at times. She was then fired, which employer claimed was for "taking too many sick days." Holding: Title VII is not limited to "economic" or "tangible" discrimination -The phrase, "terms, conditions, or privileges of employment" evinces a congressional intent "to strike at the entire spectrum of disparate treatment Definition of Sexual Harassment: Unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature. Plaintiff's dress or provocativeness: A plaintiff's sexually provocative speech or dress may be relevant to a determination of whether he or she found particularly sexual advances unwelcome. Totality of the Circumstances: The trier of fact must determine the existence of sexual harassment in light of the "record as a whole" and "the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred."

Burlington Northern v. White

Facts: White, a woman, was promoted to a fork lift operator. All other employees were male, and complained for having a woman as a fork lift operator. She complained for sexual harassment. She was then suspended for 37 days without pay (which pay later got reinstated), and she was also reassigned to the position of a track laborer, which was a less favorable job position than fork lift manager. Holding: The anti-retaliation provision covers only those employer actions that would have been materially adverse to a reasonable employee or job applicant. The employer's actions must be harmful to the point that the action could dissuade a reasonable worker from making or supporting a charge of discrimination. oAn objective standard is judicially administrable It avoids the uncertainties and unfair discrepancies that can plague a judicial effort to determine a P's unusual subjective feelings

Model of Proof in Disability Cases

Failure to Reasonably Accommodate Analysis (1) Prima Facie Case 1) Plaintiff is disabled 2) Employer knows of the disability 3) The reasonable accommodation would allow the person to perform the essential functions of the position. 4) The employer refused to provide a reasonable accommodation. (2) Then, Employer has a defense if: Employer can show that making the accommodation would cause undue hardship.

At Will Employment

G/R: Absent law or contract to the contrary, an employer may terminate an employee's employment at any time, for a good reason, a bad reason, or no reason at all. *Howard v. Wolfe *Phillips v. JP Stevens

Harassment AD

G/R: An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee •When no tangible action is taken, a defending employer may raise an affirmative defense to liability for damages, subject to proof by a preponderance of evidence (1) That the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior AND • Looking retrospectively • How do you prevent sexual harassment? o Manuals o E-mails o Training It is the employer's burden of proof to show that it exercised reasonable care to prevent harassment AND correct promptly any sexually harassing behavior •There was a problem in Meritor: In the complaint/grievance policy, you need to have alternative person to whom the complaint can be made (not the harasser) •Solution: designate someone in the HR department to prevent harassment and protect harassment victims

Employer Liability for Harassment

G/R: No recovery against discriminating individual -Faragher -Vance -Lauderdale

Record of Disability

Given the broad reading to be given to the definition of disability under the ADAAA, it is believed that the prior restrictions on "record of" claims are no longer appropriate -Not only did the employer have to have a record of the employee's impairment, but the record also had to reflect that the impairment substantially limited a major life activity -However, the precise contours of "record of" claims under the ADAAA remain to be developed through case law interpreting the Act

National Labor Relations Act (NRLA): 1935

Guarantees that many private-sector workers have the right to unionize, collectively bargain with their employers, and to engage in other concerted activity National Labor Relations Board (NLRB): federal agency created by congress to administer the NRLA Collective bargaining agreement - important source of rights and remedies for an employee CBAs will provide mechanisms for informal resolution of disputes or for arbitration Unions: raise claims against unions under both the applicable federal anti-discrimination statute and for breach of the union's duty of fair representation (§ 301)

Step 1

In order to file a Title VII claim, one must file a charge with the EEOC within 180/300 Days of the date of discrimination. NC has no state deferral agency, so it's 180 days. Process for Filing a Title VII, ADEA, and the ADA claim Six Step Process: 1. The employee files a charge with the EEOC 2. The EEOC serves the notice of the charge on the employer 3. The EEOC investigates the charge 4. The EEOC makes a determination on the charge 5. The EEOC issues a right-to-sue letter on the employee 6. The plaintiff files the employment discrimination claim in court. Note: The administrative process does not apply to Section 1981 claims.

Partner v. Employee?

Hishon accepted a position as an associate at a large Atlanta law firm in 1972. In 1978, the firm considered and rejected Hishon for admission to the partnership. A benefit that is part of the employment relationship (partnership) may not be doled out in a discriminatory fashion, even if the employer would be free under the employment contract simply not to provide the benefit at all. The law firm is obligated by contract to consider Hishon for partnership on equal terms without regard to sex. If Hishon had classified herself as a partner, she would not have been an employee.

IRCA

Immigration Reform and Control Act ("IRCA"): It is illegal for a person to work in the US unless he or she possess a status that permits the person to legally work in this country. (1) IRCA prohibits: Hiring of an alien "knowing" that the alien is not authorized to work in the US. (2) Burden is placed on the employer to verify by getting employee work-authorization documentation: Social Security Card, State Driver's License, Certified Copy of A Birth Certificate, Permanent Resident Card. IRCA has a non-discrimination clause: Similar to Title VII, prohibits an employer from discrimination on the basis of national origin. The law is broader than Title VII, in that it's coverage is for 4 or more employees.

Religion

Includes all aspects of religious observance, practice, and belief, unless employer is unable to reasonable accommodate w/o undue hardship on employer's business OR sincere belief that occupies the life of the believer in a place parallel to that of God in trad'l religions **A religious corporation may discriminate against individuals for positions connected with its activities

Unwelcomeness

It is the plaintiffs burden to prove that the conduct at issue is unwelcome. •The 9th Circuit has explained that the plaintiff must prove unwelcomeness in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive Consensual Sexual Conduct: If there was a consensual sexual relationship, then no claim can be brought. However, if the consensual sexual relationship clearly comes to an end, then a claim can still be brought. •Some plaintiffs have successfully argued that they engaged in offensive behavior as a coping mechanism in response to harassment

Step 6

Lawsuits follow the rules of civil procedure (federal or state): Main stages: Jurisdiction and venue for Title VII cases are provided by section 706(f)(3). Complaint: Must be pled with particularity Motion to dismiss: 12(b)(1) - 12(b)(6) motions Answer: Must deny or admit complaint and assert affirmative defenses Discovery: Interrogatories, Requests for Production, Requests for Admissions. Motions for Summary Judgment: Motion should be granted when the pleadings, admissions, and depositions show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Settlement & Releases: Cases tend to settle after they survive summary judgment. Employer and employee may agree to settle the claim within the bounds of generally accepted contract principles regarding settlements Trial

Discrete Discriminatory Act

Lily Ledbetter Fair Pay Act of 2004: Extends back pay period for up to two years preceding the charge, allowing women to recover for prior discriminatory compensation decisions that has continued effects upon future income. i.e. Say a woman was paid $50,000 in 1994, when her equal male counterpart was paid $65,000 in 1994. They all receive 5% yearly raises. In all further paychecks she gets less income. However, equitable defense of laches could apply to a claim that goes back too far: Laches is the doctrine that says that a plaintiff cannot bring a claim if they unreasonably rest on their rights to the point that prejudices the defendant. Lewis v. City of Chicago (2010): Interpreted Title VII to say that in disparate impact cases, the date of discrete discriminatory act is not the date that a discriminatory policy/test is adopted, but the date that the discriminatory policy/test is applied to the plaintiff. Every time the test is used is a time that the employee could bring a charge within 180 days. The date to file a charge is 180 days from the date the test result returns, because that is when the plaintiff is on notice there was a disparate impact.

Mixed Motive

McDonnell-Douglas simply said nothing on the question of how courts should treat cases where the defendant has 2 reasons for taking the challenged action, one legitimate reason and one discriminatory reason. -Direct Evidence not required here -Price Waterhouse -Desert Palace v. Costa -Gross

Hicks v. Gates Rubber (QPQ)

Meat of a QPQ sexual harassment claim is that tangible job benefits are conditioned on an employee's submission to conduct of a sexual nature and that adverse job consequences result from the employee's refusal to submit to conduct

Materially Adverse Employment Action

Materially adverse employment action = NOT the same thing as a tangible job action •Broader than tangible job actions, but certainly contains it -This can be the same but tangible job action is a smaller circle within the materially adverse employment action -Burlington v. White

Race and Color

McDonald v. Sante Fe: Applies to ALL races Even though Section 1981 of the Civil Rights Act of 1866 says "full and equal benefits of all laws and proceedings....as is enjoyed by white citizens," white people can seek relief if they are not treated equally with other races. Professor Essary stressed that Section 1981 is construed broadly by the courts and is a powerful tool for plaintiffs attorneys (also has benefit of no EEOC investigation, since EEOC is only for Title VII claims).

McDonnell Douglas

McDonnell Douglas 3 Part Test: Can Apply to Title VII, ADA, ADEA, and Section 1981. Prima Facie Case: (1) That employee belongs to a protected class (2) That employee applied and was qualified for a job which the employer was seeking applicants. (3) That despite employee's disqualifications, employee was rejected. (4) That after employee's rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications. (2) Once PFC is established, presumption of discrimination shifts to the plaintiff, and the burden of production shifts to the defendant. -Employer must: (LNDR) for the employee's rejection." (3) Once the defendant responds with a LNDR, then the plaintiff must be given a fair opportunity to show that petitioner's stated reason for respondent's rejection was in a fact a pretext OR intentional discrimination Some ways to prove pretext: (1) Facts as to employer's treatment of employee during his prior term of employment. (2) Employer's reaction if any, to employees legitimate civil rights actions. (3) Employers general policy and practice with respect to minority employment. (4) Statistic show general pattern of discrimination.

Intersectionality

Mixed-motive analysis was conceived to cover situations when two motives are at work - a legitimate motive and a discriminatory one. -Another concept that involves dual motives is called intersectionality -Sometimes plaintiffs allege that discrimination was the result of more than one protected trait

DI w/ ADA

Model of proof for disparate impact undefined/uncertain. Be prepared to argue whichever model works best for your client. ADA prohibits the use of qualification standards/tests that tend to screen out an individual with a disability unless the standard/test is shown to be job-related for the position in question and consistent with business necessity. 42 USC 12112(b)(6). ADA requires that tests be administered and selected in the most effective manner to ensure such test results accurately reflect the skill or aptitude required for the job, rather than reflecting the impaired sensory, manual, or speaking skills of the employee applicant. 42 USC 12112(b)(7).

Phillips v. JP Stevens

NC is one of the States that has a tort cause of action for "Wrongful Discharge in Violation of Public Policy." There is a state statute in NC that says that it is the public policy of the state that employers with 15 or more employee's cannot discriminate on the basis of race, religion, color, national origin, age, sex, or handicap. Note that age and handicap are not in Title VII. 3 year statute of limitation. --Which is longer than Title VII. So if a Title VII claim is barred by SoL, then definitely consider bringing an action under Wrongful Discharge in Violation of Public Policy

Medical Examinations: Disability

One can make a job offer contingent on passing a medical exam, but that must be a post offer requirement, and every employee offered the position has to be subject to the medical exam. -An employer can then withdraw an offer upon failing of the medical exam, but the medical exam must be related to performing the job. Employers cannot just weed out disabled people without a valid job function related reason.

Ministerial Exception

Only the religious organization alone can determine who will be a spiritual leaders. Essentially, a church can legally fire its ministers for whatever reason it wants, not only because of religious differences. -Hosanna v. EEOC

Sex, Pregnancy, and the Maternal Wall

PDA on P. 11 of the Supplement Pregnancy Discrimination Act of 1978 (PDA) contains three mandates: (1) Plainly prohibits discrimination on the basis of pregnancy; (2) Requires equal treatment of pregnant workers and non-pregnant workers whose ability to work is similar, and (3) Specifies the ramifications on the PDA on abortion funding. -In re Union -DOE v. CARS Inc

Religious Discrimination & Public Employers

PE must consider the 1st Amendment and Title 7 in these situations -Must respect EE's free exercise of religion rights while not violating establishment clause by appearing to endorse EE's religious expression

Retaliation Protected Activity

Participation: Employees participate when they file a discrimination charge or complaint. -This includes: *A claim with the EEOC. *Testifying in a discrimination lawsuit *Any other proceeding under state law. -Under participation, an employee is given almost unqualified protection if they suffered an adverse action. -This is true even if the underlying claim turns out not to be legally valid. -In some jurisdictions, there is protection even if the employee filed an action fraudulently or with bad faith. Opposition: When an employee objects to an employers behavior in a less formal manner. -The degree of protection in opposition cases is far less absolute than afforded to participation. -Courts protect opposition activity only if the plaintiff reasonably believed that the challenged employer conduct violated the statute. 1.Go to participation Clause first 2.Then go to Opposition Clause, regardless of whether you did find it under Participations Clause •They defined "opposed:" "to resist or antagonize; to contend against; to confront; resist; withstand" (Webster's dictionary) oResist frequently implies more active striving that oppose oOppose is also defined as "to be hostile or adverse to, as in opinion" (Random House Dictionary) -Crawford

Burdens of Production/Persuasion in Disability Cases

Plaintiff has the burden to demonstrate reasonable accommodation (reasonable on its face) then burden shifts to employer -Employer has the burden to prove specific circumstances make that accommodation unreasonable for them (undue hardship) -Plaintiff has the burden to establish it can perform the essential functions of the job

Rehabilitation Act of 1973

Precursor to ADA - prohibits certain federal employers, federal contractors and entities that receive federal financial assistance, from discriminating against employees on the basis of disability

Reinstatement

Preferred remedy for unlawful termination. If not feasible b/c workplace is hostile then frontpay is available NO CAPS ON BACK OR FRONT PAY

Backpay

Presumed remedy is someone was not hired. Awards P loss of income suffered as a result of discrimination Includes: overtime and benefits P has duty to mitigate back pay damages to find substantially similar position

5th Circuit COA modified MD framework

Prima facie case of discrimination by showing that (1) he is a member of a protected class; (2) he is qualified for the position at issue; (3) he suffered an adverse employment action; and (4) he was replaced by someone outside the protected class or was treated less favorably than similarly-situated employees outside the protected class. If the plaintiff establishes the prima facie case, the burden shifts to the defendant to proffer a legitimate, nondiscriminatory reason for its action. If the defendant satisfies its burden of production, the burden then shifts back to the plaintiff to offer sufficient evidence to create a genuine issue of material fact that either (1) the defendant's reason is false and is a pretext for discrimination, or (2) that the employer's reason, while true, is only one of the reasons for its conduct. and the plaintiff's protected characteristic was a motivating factor in the decision. If the plaintiff demonstrates that the protected characteristic was a motivating factor in the employment decision, it then falls to the defendant to prove that the same adverse employment decision would have been made regardless of discriminatory animus. If the employer fails to carry this burden, the plaintiff prevails.

The Proper Defendant

Private Employers: --Employer: (Title VII definition) means a person engaged in an industry affecting commerce who have 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, any agent of such a person, but such term does not include.... *Includes employment agencies and labor organizations

Smith v. City of Jackson

RFOA: is an affirmative defense (in step 2 of analysis) if there is some reasonable factor other than age that we can prove existed or having done the neutral practice -More broad - must easier to defend the neutral practice that causes a disparate impact on members over the age of 40

McDonnell Douglas-ADEA

Reeves v. Sanderson Plumbing (2000): Facts: Reeves (Age 57) and Caldwell (Age 45) were fired when Oswalt (Mid 30s) was not fired. All had the same alleged misconduct. Reeves says he was fired by the president of the company due to a recommendation by the director who made comments to Reeves saying "You are too damn old to do this job"

Religious Employer Exception

Religious entities are exempted from Title VII's prohibition against religious discrimination -Applies only to those institutions whose purpose and character is primarily religious -Factors analysis of what qualifies as a religious institution: (1) Articles of incorporation state a religious purpose (2) day to day operations religious (3) not-for-profit (4) affiliated with or supported by a church or other religious organization

BFOQ standard

Rule: An employer asserting a BFOQ defense has the burden of proving that (1) the age limit is reasonably necessary to the essence of the business, and either (2) That all or substantially all individuals excluded from the job involved are in fact disqualified OR (3) That some of the individuals so excluded posses a disqualifying trait that cannot be ascertained except by reference to age. And if the employer's objective in asserting a BFOQ is that goal of public safety: Then the employer must prove that the challenged practice does indeed effectuate that goal and that there is no acceptable alternative which would better advance it or equality advance it with less discriminatory impact.

Same Decisionmaker/Same Class

SD: At times, the courts infer that discrimination is not the likely explanation for the negative decision because the same decision maker earlier made a positive decision. SC: Where the employer/manager is of the same class as the person making the claim, the courts may infer that discrimination is not the likely explanation.

Pregnancy Discrimination Model of Proof

Several courts use the McDonnell Douglas framework for evaluating pregnancy discrimination claims Prima facie case includes these four factors (1) Plaintiff was pregnant (2) She was qualified for her job or meeting employers legitimate expectations (3) She was subjected to an adverse employment decision (4) There is a nexus (causation) between her pregnancy and the adverse employment decision

Filing the Charge

Standard for determining whether a filing is a charge: A filing that names the employer and alleges discrimination will be a charge if it is reasonably construed as a request for the agency to take remedial action to protect the employee's rights or otherwise settle a dispute between the employer and employee. Charge issue will not arise if lawyer simply files a charge using EEOC's Form 5. Discrete Discriminatory Act: The EEOC charging period is triggered when a discrete discriminatory act takes place. Examples of discrete discriminatory acts include hiring, firing, demotion, and failure to promote. Notice of Decision Rule: The 180 days begins when the employee receives notice of the decision of the adverse action.

DI 80% rule-Defining Disparity

Statistical significance of Disparity: Under EEOC regulations, a selection rate for any race, sex, or ethnic group which is less than 80% of the rate for the group with the highest rate will generally be regarded as statistically significant. -Courts are not bound by this regulations, but courts often do use it as a guideline.

Weber Case on Aff. Action

Supreme court has held that Title VII's nondiscrimination provisions do not prohibit race-conscious decision-making pursuant to a valid affirmative action plan. -Title VII only applies to written Affirmative Action plans. -If one does not have a written AA plan, it is illegal if the employer uses race or sex influencing when making a decision, even if for the purpose of diversity. -Quota's are taboo: If defending an affirmative action plan, cannot use quotas. Can at most only use race as a factor. -AA Plans should not use the word maintain a diverse workplace. -AA Plans can only be used to attain a diverse workplace. Also should not use the word "set aside" -Johnson v. Transportation Agency

Administrative Procedures applied to other Statutes

The ADEA process is mostly the same, except for the following Right-to-sue letter is not a pre-requisite to filing suit. All ADEA needs is filing a charge and then waiting 60 days. ADEA claims, however, must be filed within 90 days of the receipt of a right to sue letter if one is issued. Unless the EEOC files the action on behalf the charging party, an ADEA plaintiff may file suit at any time from 60 days after timely filing the charge until 90 days after the receipt of the right to sue letter Section 1981 has no administration regulation at all. For pre-employment conduct, SOL is the same as for a tort action in that state. For post-employment conduct, SOL is 4 years. State anti-discrimination claims and the administrative process States are free to experiment in this arena and provide more rights than federal law does, such as protection against sexual orientation discrimination or broadening what constitutes a covered employer, i.e. reducing or doing away altogether with the Title VII 15 employee coverage requirement It is standard for the charging party to dually file a charge of discrimination with both the EEOC and the applicable state agency and then follow both the federal and state administrative requirements so that rights under both state and federal administration laws are preserved.

Clackamas Gastroenterology v. Wells

The Court looked at 6 factors in order to determine if the physicians were employees: (DO NOT NEED TO REMEMBER THE TEST - BUT KNOW IT IS APPLIED SLIGHTLY DIFFERENT IN EACH STATUTE AND HOW TO APPLY IT THEN) (1) Whether the organization can hire or fire the individual or set the rules and regulations of the individual's work; (2) Whether and, if so, to what extent the organization supervises the individual's work; (3) Whether the individual reports to someone higher in the organizations; (4) Whether and, if so, to what extent the individual is able to influence the organization; (5) Whether the parties intended that the individual be an employee, as expressed in written agreement or contracts; and (6) Whether the individual shares in the profits, losses, and liabilities of the organization. **NO one factor is determinative regarding whether an individual is an employee. **§ 1981 does NOT require that an individual be an employee to fall within its protections.

Retaliation Causal Link

The employer took the adverse action because of the protected activity -Time between Protected activity → materially adverse action -Did the protected activity cause the materially adverse action? -Must establish 'but for casuation': Must use McDonnell Douglas to prove this: Employer then may present LNDR Plaintiff may show defendants LNDR is mere pretext Can be proven by: (1) Statement of the supervisor acknowledging that the adverse employment action was motivated by the plaintiff's protected activity (2) Plaintiff may prove causation by showing temporal proximity between the supervisor's learning that the plaintiff engaged in protected activity and the superior's taking adverse action against the plaintiff -P MUST show that the supervisor KNEW of the protected activity -D could argue that he did not know of the protected activity and that he had the reassignment planned in advance -Courts differ on how close in time protected activity and an adverse action must be to justify an inference of retaliation based on temporal proximity alone -- maybe 3 or fewer months (3) Plaintiff may also prove causation by comparator evidence - showing that a similarly situated employee who had NOT engaged in protected activity was NOT subjected to the adverse treatment to which Plaintiff was subjected -If you have comparator evidence then use it! -Univ. of Texas v. Nassar

Core Concepts: Protected Individuals

The federal statutes impose express limitations on the kinds of individuals protected by the statutes. •An individual alleging they have been discriminated against under Title VII, the ADEA, and the ADA must be an "employee" to be protected. oThis protection extends to potential employees such as applicants for employment and some former employees •Have to determine whether the person is in fact an "employee" before moving forward with the claim. oAn employee is defined as "an individual employed by an employer." = circular •Independent contractors, volunteers, partners, shareholders, and others who are not employees are NOT protected under Title VII, the ADEA, or the ADA. •A person is not required to receive monetary compensation in order to be an employee •Labels DO NOT matter, you still have to determine if that person is an employee. Factors to determine if employee: Clackamas

Reasonable Accommodation

The key term is reasonable. --An employer does not have to make an accommodation that is unreasonable or unduly burdensome. -Unlike religious accommodations, the standard is not de minimus. It is higher than that. -An employer only has to make an accommodation for a disability that is known to the employee. -The employee needs to make known to the employee that it needs to make a reasonable accommodation. An accommodation is reasonable if it is effective -The employer is not required to provide the exact accommodation an employee requests •However, any accommodation provided must allow the employee to perform his or her essential job functions •An accommodation that is not effective for the employee is not reasonable -Vande

Stray Remarks

The stray remarks doctrine attempts to prevent the jury from being unduly swayed by discriminatory comments that have little relationship to the plaintiff's claim of discrimination.

Intent

The term "cat's paw" refers to one person being used as the tool of another -In cat's paw cases, the employer alleges that it cannot be held liable for discrimination because a person acting without intent actually made the employment decision. -The plaintiff typically argues that the decisionmaker relied on biased information, served as a conduit for the discrimination of others, or merely rubber stamped a discriminatory decision made by another person -In other words, while "intent" is present in these cases, the ultimate decisionmaker is not the person who possesses such intent

Types of Reasonable Accommodations

The term "reasonable accommodation" may include— (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

Undue Hardship

The term "undue hardship" means an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (B). (B) Factors to be considered -In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include— (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 workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.

LGBT Individuals

There is currently no federal statute that prohibits discrimination on the basis of sexual orientation and gender identity. Also, NC has no statute which protects on basis of LGBT. Supreme court has declined to extend heightened scrutiny to homosexuals under the equal protection clause

Government Employers

Title VII, ADA, and ADEA all apply to state governments and their agencies and subdivisions. --However, the numerosity requirements vary by statute. •Title VII and the ADA's employment discrimination provisions apply to such entities or agencies that employ at least 15 employees. •There may be limits imposed by the 11th Amendment regarding suits against state governments brought under the ADA, ADEA, and section 1981. •Board of Trustees of University of Alabama v. Garrett: o The Supreme Court held that the 11th Amendment bars private suits seeking money damages for state violations of Title I of the ADA. •Some courts have held that the 11th Amendment applies in § 1981 cases. •Neither Title VII nor the ADEA prohibited discrimination by the federal government •The ADA does not include most other federal government employers within its coverage provisions; however, disability discrimination provisions applicable to the federal government can be found in the Rehabilitation Act, a precursor to the ADA. •Section 1981 claims may NOT be asserted against the federal government. Brown v. General Services Administration

Sex Based Gender Gap

Title VII: Unequal pay can be brought under Title VII as being sex-based pay discrimination. Essential argument in comparable worth cases: Employer pays employees in positions traditionally held by women less than it pays individuals in positions traditionally held by men, even though the work performed might be of comparable worth to the employer -4 exceptions to equal pay requirement: (1) seniority system; (2) merit system; (3) system measuring earnings by quantity or quality of production; (4) differential based on any other factor other than sex

Protected Classes- Title 7

Title VII: prohibits employment discrimination because of an "individual's race, color, religion, sex, or national origin" 42 U.S.C. § 2000e-2(a) -Several major controversies occurred about the definition of certain protected traits ---General Elec. Co. v. Gilbert: Supreme Court interpreted Title VII's prohibition against "sex" discrimination as not including a prohibition against pregnancy discrimination OVERTURNED BY PDA **Congress later amended Title VII to define this to include discrimination because of or on the basis of pregnancy, childbirth, or related medical conditions

Chalmers v. Tulon (4th CIRCUIT CASE!!)

To establish a prima facie religious accommodation claim, a plaintiff MUST establish that: (1) He or she has a bona fide religious belief, practice, or observance that conflicts with an employment requirement; (2) He or she informed the employer of this belief; -Is it properly informing someone if you are dressed in a certain manner? (3) He or she was disciplined for failure to comply with the conflicting employment requirement. -If the employee establishes a prima facie case, the burden then shifts to the employer to show that it could not accommodate the plaintiff's religious needs without undue hardship -Employer has to provide, we think, an affirmative defense o *** The burden is on the employer to attempt to accommodate the religious beliefs, practices, or observances Practical reality: if the employer can accommodate those religious beliefs, practices, or observances, then employer should oIf the employer made a reasonable accommodation but the employee requests another one, the employer will win Employer's burden is satisfied with the reasonable accommodation

Actual Disability

USE THE STATUTE HERE!!! •The actual disability prong involves three separate concepts: (1) A physical or mental impairment (Physical or mental impairment - Any physiological disorder) that (2) substantially limits -Broadly Construed: EEOC defines, which says it is broadly construed. -Substantially limits must be made without regard to ameliorative effects of mitigating measures. Bottom of p. 70 in Supplement. (3) one or more major life activities -Broad Definition: Includes caring for oneself, performing manual tasks, seeing, hearing, breathing, eating, sleeping, and many more. •Cases interpreting the concept of physical or mental impairment have held that the following conditions constitute an impairment under the ADA: -Bragdon v. Abbott (1998): HIV infection -Toyota Motor Manufacturing v. Williams (2002) Carpal tunnel syndrome -Sutton v. United Air Lines (1999) severe myopia (nearsightedness) -Murphy v. UPS (1999) Hypertension (high blood pressure) •The Supreme Court in Sutton v. United Air Lines, held that in considering whether a person was substantially limited, courts were required to look at any mitigating measures that helped alleviate the disability

Business Judgment

Under the business judgment rule, employers are allowed to make subjective decisions. -They have to be allowed to make decisions to effectively perform its business operations. -This means that discrimination is NOT necessarily present when an employer chooses a less qualified employee. *Often tied to Reduction in Force Cases.

Retaliation: 3P

VII's anti-retaliation provision is broadly construed to cover a broad range of employer conduct, and as such includes the firing of individuals who are close to another EE who has brought a charge or sued the ER Zone of interests test—plaintiff may not sue unless he falls within the zone of interests sought to be protected by the statutory provision whose violation forms the legal basis for his complaint

Individual Supervisors & Co-Workers

Whether an individual supervisor or other co-worker can be held personally liable under these statutes? -No-they are not personally liable. -Could always have a claim under Wrongful Discharge -May be other statutes or torts that provide individual liability for persons who made the adverse decision about your employee Individual Supervisors: The majority view is that individual supervisors or co-workers ARE NOT personally liable, UNLESS •Under section 1981: Individual liability when sole proprietors who own the business and are the employer

Race & Arrest Records

With respect to using conviction records, the employer must show that it considered the following three factors: (1) The nature and gravity of the offense(s); (2) The time that has passed since the conviction and / or completion of the sentence; and (3) the nature of the job held or sought.

Bottom Line Defense for DI claims

• With the development of disparate impact theory, employers began to argue that they could not be held liable for disparate impact if a practice created a disparate impact, which the employer then ameliorated -Connecticut v. Teal -Smith v. City of Jackson Note: However, the EEOC has indicated in most circumstances it will not use it's enforcement authority to challenge multi-step processes which have no bottom line disparate impact.

McKennon v. Nashville

•Calculation of backpay from the date of the unlawful discharge to the date the new information was discovered -Where an employer seeks to rely upon after-acquired evidence of wrongdoing, it must first establish that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of discharge -The employer MUST prove, that had it known at the time that she had stolen documents, that it would have fired her! 1. This is a high burden--must be pretty extreme conduct 2. This rose to the level of "they would have fired her." P cannot get FRONT PAY

QPQ/HWE Analysis w/ Cases

•QPQ harassment: -Supervisor created -Tangible job action = automatic/absolute liability •HWE harassment: (1) Supervisor responsible = sufficiently severe or pervasive -Employer can be liable for the supervisors actions but Employer does have an affirmative defense if it can meet the test that is laid out in the left hand column of the chart handout (a) Employer exercise reasonable care to prevent and promptly correct the harassing behavior? (b) Did the employee unreasonably fail to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm otherwise? (2) Co-workers = -The P has to prove BOTH known (actual knowledge) or should have known (constructive knowledge) • Unwanted conduct was severe or pervasive -P has the burden to prove the employer NEGLIGENT There is NO shifting burden here *** determining whether it is a supervisor determines which side of the chart to go down = and what the employer has to prove *** Under supervisor = ER need to prove an affirmative defense Under co-worker = EE must prove that the ER was negligent

Retaliation clause in the courts

•Some courts use the McDonnell-Douglas test when evaluation retaliation claims based on circumstantial evidence •Some court held that the 3 elements listed above establish the prima facie case •Once the elements are established, these courts require the employer to articulate a legitimate, nondiscriminatory reason for its actions, and the P may prevail by rebutting the employer's reason