Employment Discrimination

Thompson v. N. Am. Stainless (2011)

"Zone of interest" test: P may not sue unless he falls within zone of interest sought to be protected by the statutory provision whose violation forms the legal basis for his complaint P can sue - not an incidental victim - injuring him was employer's intended means of harming fiance (P fired after co-worker/fiance files discrim charge with EEOC - 3rd party retaliation against P?)

Disability

1) A physical or mental impairment that substantially limits one or more major life activities of such individual; 2) A record of such an impairment; or 3) Is regarded as having such an impairment

English-Only Rule Practical Tips

1) Employers should ask whether the policy is absolutely necessary - do the benefits outweigh the risk of a lawsuit? 2) If an employer decides to proceed, it should clearly document its rationale for creating such a policy 3) The policy should be implemented and enforced in the least restrictive means possible 4) Employers must make sure to notify all employees of the policy 5) Employers must make sure that employees aren't using the policy to harass other employees

2 Protected Activities for Retaliation Claims

1) Opposed unlawful practice (P had reasonable good faith belief Title VII was violated and communicated to D in reasonable, lawful way) 2) Participated in formal enforcement process (filed charge, testified, assisted, participated in any manner)

EEOC Bet Practices

1) Strong EEO policy embraced by executives, train managers and employees, enforce it, and hold managers accountable 2) Transparent, documented decisions 3) Recruit, hire, and promote with EEO in mind 4) Monitor for EEO by conducting self-analyses 5) Analyze relevant job duties and competencies 6) Training and mentoring to develop employees with EEO 7) Monitor compensation performance appraisal systems for potential discrim 8) Promote inclusive culture, environment of professionalism respect 9) Open communication, early dispute resolution 10) Protect against retaliation

Religious Accommodation Analysis

1. Employee has a bona fide religious belief, the practice of which conflicted with an employment duty. 2. She informed her employer of the belief and conflict. 3. The employer threatened her or subjected her to discriminatory treatment, including discharge, because of her inability to fulfill the job requirements. 4. If employee proves a prima facie case, the burden shifts to the employer to show either that it initiated good faith efforts to accommodate reasonably the employee's religious practices or that it could not do so without undue hardship.

2-Part Test for Failure to Accommodate (ADA and Title VII Religious Discrim)

1. Employee must establish that she suggested a reasonable accommodation; and 2. If a reasonable accommodation exists, the employer must establish that it results in an undue hardship on the business

Procedural Requirements of Filing Charge

180 days to file with EEOC 300 days to file with state equivalent agency P must exhaust administrative remedies before filing suit in federal court Employer must be notified within 10 days P has 90 days to file civil case in federal court upon receiving right to sue letter Must sufficiently allege discrimination: plausible claim of relief, "short plain statement showing pleader is entitled to relief"

Harassment

2 traditional claims: 1) Quid-pro-quo - claim brought where supervisor would use "sex" as tool for either reward or punishment 2) Hostile work environment - claim brought where P alleges she suffered a hostile atmosphere in the workplace, though not necessarily one that has had a direct economic impact

"Because of Sex"

3 Circumstances: 1) Showing that harassment was sexual by nature; 2) Establishing that the company treated one sex with hostility (maybe just treating one sex badly); or 3) Comparative evidence showing that one sex was treated better than another

Disability Discrimination

4 different causes of action: 1) Disparate treatment discrimination; 2) Failure to make reasonable accommodations; 3) Unlawful medical inquiries; and 4) Unlawful disparate impact discrimination P must establish they: 1) Are disabled; 2) Are qualified to perform the essential functions of the job with or without reasonable accommodation; and 3) Have suffered an adverse action. Burden of production shifts to D to justify, then back to P to show pretext

Ames v. Nationwide (2014)

A D's attempts to accommodate a P with pregnancy related conditions shows D's intent to maintain employment relationship with that P and won't support constructive discharge if no agreement is made (P quits and claims sex discrim and constructive discharge after denied lactation room (didn't fill out paperwork), wellness room occupied)

Tangible Employment Action

A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, etc. - direct economic effect on P Vicarious liability automatically attaches to employer in cases involving tangible employment action

U.S. Airways, Inc. v. Barnett (2002)

ADA does not require employer to violate seniority system - an employer's showing that a requested accommodation conflicts with seniority rules is usually sufficient to show that an accommodation is not reasonable. Employee can present evidence of special circumstances that make seniority rule exception reasonable: 1) Employer retained right to unilaterally amend the seniority system and did so frequently - one more change to accommodate a disability would not likely make a difference; 2) The seniority system already contains enough exceptions - one more is not likely to matter (D not liable when P who hurt back and requested transfer to mailroom was not granted transfer because 2 employees were ahead of him on seniority system)

General Dynamics Land Systems, Inc. v. Cline (2004)

ADEA didn't intend to stop an employer from favoring an older employee over a younger one - Only concerned with protecting older workers from discrimination New worker must be "substantially younger" than old worker as consideration regarding whether fourth element of prima facie has been satisfied (10 years is enough - less than that is unclear) (Employee over 40 can't recover when D only provides health benefits to employees over 50)

Lilly Ledbetter Fair Pay Act of 2009

Amend to Title VII - unlawful discrimination in compensation occurs when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid

Pregnancy Discrimination Act of 1978

Amend to Title VII providing that pregnant women or women affected by pregnancy related conditions must be treated the same as non-pregnant employees who are similarly unable to work

Faragher v. City of Boca Raton (1998)

An employer is vicariously liable for actionable discrimination caused by a supervisor, but subject to an affirmative defense looking to the reasonableness of the employer's conduct as well as that of the Plaintiff victim EEOC factors of harassment policy: Clear explanation of prohibited conduct, assurance that employees who complain will be protected from retaliation, clearly described complaint process, assurance that employer will protect confidentiality, prompt thorough and impartial investigation, assurance that employer will take appropriate corrective action if determine harassment occurred (Repeated unwanted sexual conduct, P complains, D reissues harassment policy but doesn't distribute to P's department, P sues for harassment, hostile work environment)

Connecticut v. Teal (1982)

An individual may establish a prima facie case under Title VII by producing evidence that one component of a selection produced - a component which operated to bar that individual from further consideration for promotion - had a discriminatory disparate impact on the individual's protected group - Court allowed establishment of a prima facie case despite the fact that the overall result of the selection process, or bottom line, reflect an appropriate racial balance (P are black employees, took exam for promotion, all failed, they sue, D takes affirmative action and promotes some - bottom line defense)

Impairment as Defined by EEOC

Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological musculoskeletal, special sense organs, respiratory, cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine

1991 Amendment to Title VII

As long as discrimination is "a" motivating factor, no the "because of" factor, P has a right to sue for discrimination Title VII 3-Part test: 1) P must establish that identified employment practice results in disparate impact on protected group; 2) D must prove that employment practice is job related for position in question and consistent with business necessity (burden of production, not persuasion); and 3) Even if employer satisfies its burden, P can still prevail by establishing that there is alternative employment practice available with less discriminatory impact that still satisfies employer's business needs.

International Union, United Automobile Workers v. Johnson Controls, Inc. (1991)

BFOQ defense only applicable in narrow circumstances. Safety exception is limited to instances in which sex or pregnancy actually interferes with the employee's ability to perform the job. The language of the BFOQ provision and the PDA prohibit an employer from discriminating against a woman because of her capacity to become pregnant unless her reproductive potential prevents her from performing her job duties. 2-part test for evaluating whether BFOQ applies: 1) Discrimination must be job related, 2) Necessary discrimination must go to the essence or central mission of what employer does (D excluded women from job unless incapable of having kids because lead exposure could harm fetus - didn't exclude fertile men)

Defenses to Direct Evidence

BFOQ, limit damages by showing it would have taken same adverse action against P even in absence of discriminatory motive

Co-Worker Hostile Work Environment (Imputing Liability)

Burden on P that employer knew or should have known of the bad conduct and failed to take appropriate remedial action (Knew or should have known, Employer negligent)

Clackamas Gastroenterology Associates v. Wells (2003)

CL element of control is principal factor in deciding whether director-shareholder should be counted as employee Factors: Employer has right to control when, where, and how worker performs job; Work doesn't require high level of skill/expertise; Employer furnishes tools, materials, and equipment; Work performed on employer's premises; Continuing relationship between worker/employer; Employer has right to assign additional projects; Employer sets hours and duration of job; Worker is paid by hour, week, or month Mariotti - consider nature of business entity in applying Clackamas test (P brings claim under ADA, D says they don't have 15 employees - are physician-shareholders counted?)

Grooming and Appearance Standards

Can apply differently to males and females where standards comply with general social norms; may prefer attractive employees over unattractive if males and females considered equally as well as young and old

Systematic Litigation

Claims brought on behalf of multiple individuals 2 types: 1) Gov can bring suit on behalf of multiple individuals alleging discrimination against a single employer - not subject to FRCP Rule 23 2) Several individuals can bring suit alleging discrimination against a single employer - subject to FRCP Rule 23 (numerosity, commonality, typicality, adequate representation)

Burwell v. Hobby Lobby Stores, Inc. (2014)

Closely held for-profit corporations exempt from a regulation its owners religiously object to if there is a less restrictive means of furthering the law's interest. McDonnell Douglas applies to religious discrimination cases. (D claims religious beliefs opposed to certain birth control should exempt them from requirement of providing insurance coverage for contraception)

Swierkiewicz v. Sorema (2002)

Complaint need not include specific facts establishing prima facie case under McDonnell Douglas framework - just has to meet "short plain statement" requirement under FRCP 8(a)(2) - should probably allege whatever info you have just in case (P, 56, Hungarian working for French corp, replaced by 32-year old Frenchman with less experience, sued for age and national origin discrim)

Investigating Harassment Claims

Considerations: 1. Critical that person performing investigation is neutral part with no bias 2. Important for company not to have "knee jerk" reaction against alleged harasser 3. Documentation is key at every step of investigation 4. Confidentiality can simply not be guaranteed to witnesses in these matters 5. If outside 3rd party investigates the harassment claim, it may technically be considered a "credit report" under the Fair Credit Reporting Act 1st Amend Defense? - does employer have freedom of speech to make demeaning comments about protected class

Family and Medical Leave Act

Covered and eligible employees are entitled to take 12 weeks of unpaid leave during a 12 month period to care for a newborn child, to address a serious health condition, or to care for a close family member (spouse, son, daughter, or parent) with a serious health condition Coverage: all public employers, private employers with 50 or more employees for 20 weeks/year; P must have been employed for 12 months and worked 1,250 hours and worked on site with 50 employees within 75 miles Notice: employee must give 30 days notice (or as soon as possible/practical) Anti-retaliation clause - retaliation creates separate cause of action

Bulletproofing

D considering adverse action evaluates risks and takes steps to make it difficult for P to make prima facie case (ex: all positions slightly different - no comparison between similarly situated employees)

Dothard v. Rawlinson (1977)

D failed to produce any evidence correlating the height and weight requirements with the requisite amount of strength thought essential to good job performance The BFOQ defense could permit the hiring of one gender - women working in an all-male prison environment were subject to unique dangers - essence of a correctional officer's job is to maintain prison security - a woman's relative ability to maintain order in a male maximum-security prison could be directly reduced by her womanhood (BFOQ generally not good reason to forbid female security guards) (P is female who doesn't meet height and weight requirements for job - sues for sex discrimination)

Mixed Motive Case

D had both legitimate and discriminatory motives; as long as P proves discrim was part of decision, D is liable - allows D to limit damages by showing they would have fired P anyway Usually only bring mixed motive cases when evidence shows P in bad light - D may also suggest mixed motive as defense when they know they are going to lose

Standing and Coverage

D must have at least 15 employees under Title VII and ADA, at least 20 employees under ADEA P must be employed by D: can D fire P?, extent of D's supervision over P's work, extent P can influence D, did parties intend P to be employee?, does P share in profits/losses/liabilities? (partner/director not considered employee)

After Acquired Evidence

D takes adverse action based solely on discriminatory motives, and information later comes to light which would have justified employer's decision - Damages are cut off on the date that the employer discovers that the misconduct occurred (look through records to find legitimate reason to terminate, but don't escalate to retaliation)

Moranski v. General Motors Corp. (2005)

Denial of all religious groups is not religious discrimination - treats all religious groups the same

Desert Palace, Inc. v. Costa (2003)

Direct evidence not required - Title VII doesn't mention that P must make heightened showing through direct evidence - P need only present sufficient evidence for reasonable jury to conclude, by preponderance of the evidence, that protected characteristic was motivating factor (Female P had altercation with male co-worker, was fired, claims sex discrim when co-worker wasn't fired too - mixed motive case)

Palasota v. Haggar Clothing (2003)

Direct evidence of age discrimination must be: 1) Age related; 2) Proximate in time to the termination; 3) Made by an individual with authority over the termination; and 4) Related to the employment decision (Memo recommending severance packages for employees over 50 to "thin the rank," "race horses, not plow horses," "transition out of old school," "graying sales force" was direct evidence of age discrimination)

Watson v. Fort Worth (1988)

Discretionary decision-making by employers challenged as a violation of Title VII should be scrutinized under the disparate impact rather than disparate treatment standard (P is black, all supervisor positions given to whites, subjective criteria of supervisors)

Sex Discrimination

Discrim "because of sex" - includes: 1) showing conduct was sexual in nature, 2) company treated one sex with hostility, 3) evidence one sex treated better than another, 4) discrim based on pregnancy, 5) discrim based on sexual orientation, 6) failing to provide leave to care for family

Associational Discrimination

Discrim of one individual on the basis of his or her relationship or association with another individual of a protected class

Accent Discrimination

Discrimination based on someone's accent can constitute national origin discrimination. Employment decision based on foreign accent doesn't violate Title VII if individual's accent materially interferes with ability to perform job duties

Garcia v. Spun Steak Co. (1993)

Disparate impact requires P to identify specific, seemingly neutral policy that has a significantly adverse impact on persons of protected class Employees argued: denied ability to express cultural heritage on job, denied privilege of employment enjoyed by monolingual speakers of English, and created atmosphere of inferiority, isolation, and intimidation - Title VII doesn't protect right to cultural expression on the job, ability to converse at all is privilege of employment (doesn't encompass ability to speak language of choice), privilege is given at employer's discretion (employer has right to define) No evidence that policy contributed to atmosphere of isolation, inferiority, or intimidation. (P were Hispanic workers who sued after English-only rule established during work times - could speak Spanish at lunch, on break, personal conversations, etc.)

In re Bemis (2002)

EEOC is exempt from FRCP 23 - primary role is that of a law enforcement agency and it is merely a detail that it pays over any monetary relief obtained to the victims of the defendant's violation rather than pocketing the money itself - Law enforcement agency - not a class representative; Having to prove the 4 requirements would interfere with EEOC's prosecutorial discretion; EEOC doesn't stand in employee's shoes (EEOC brings class action, D says EEOC doesn't meet FRCP class requirements)

King v. Acosta Sales & Marketing, Inc. (2012)

EPA claim - Employer must meet burdens of both production and persuasion that difference in pay is result of factor other than sex - Education and experience may explain difference in starting salaries but there is no reason why they should explain increases in pay while a person is employed - Salary changes are usually based on performance (P was business manager for D who showed evidence of drastic pay differences between men and women in same job - D said men paid more based on education and experience)

Four Exemptions to Religious Discrimination Cases

Education Exception, Religious Employer Exception, BFOQ, Ministerial Exception

Vance v. Ball State University (2013)

Employee is a "supervisor" for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim (effect 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 responsibilities) Ability to direct another employee's tasks is not sufficient in and of itself Matter of law for the judge (P was black catering assistant claiming harassment by "supervisor" - can she impute liability to employer?)

Affirmative Action Plans

Employer acknowledges race as factor in hiring process

McKennon v. Nashville Banner Publishing Co. (1995)

Employer couldn't have been motivated by knowledge it didn't have and it can't now claim that the employee was fired for the nondiscriminatory reason; Back pay should be calculated from date of unlawful discharge to date new information was discovered (P, 62, fired in work force reduction, claims age discrimination, during depo D discovers P committed misconduct, would have been fired anyway had they known)

Accommodation

Employer must "reasonably accommodate an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business" 1. Accommodations must be reasonable 2. Accommodation must not rise to the level of undue hardship

Ricci v. DeStefano (2009)

Employer must have strong basis in evidence that it will be subjected to disparate impact liability if it fails to take the discriminatory action -Failed to prove here - exams were job related, consistent with business necessity, no evidence that equally valid less discriminatory alternative was available (Whites outperform minorities on promotion exams, minorities threaten disparate impact if not promoted, whites threaten disparate treatment if exam results disregarded, D throws results out and claims avoiding disparate impact as defense to disparate treatment claim)

Religious Employer Exception

Employer must meet the following 2 tests: 1. Employer itself must be religious, and 2. The discrimination that is being exercised must be religious in nature

EEOC v. Pipefitters (2003)

Employer who is aware of racial/sexual harassment making workplace intolerable for targets and does nothing to correct situation is violating Title VII; Union not liable - no statutory duty to investigate and rectify employer's discrim, impractical because employer is in better position to prevent/eliminate harassment (Racist graffiti at work, superintendent (union officer) did nothing, eventually tells someone to paint over it, P sues)

Espinoza v. Farah Mfg. Co. (1973)

Employer's refusal to hire a person because he isn't a US citizen doesn't constitute employment discrimination on the basis of national origin. National origin refers to the country where a person was born, or, more broadly, the country from which his or her ancestors come (Bare minimum of national origin). Federal employment requires US citizenship - if this was covered by Title VII, it would treat federal and private employers differently. (P is lawfully admitted resident from Mexico denied work because she isn't US citizen)

Chevron U.S.A., Inc. v. Echazabal (2002)

Employers don't have to hire a person with a disability if they believe that person's health or safety would be put at risk by performing the job - risk of violating OSHA is enough (D not liable for not hiring a P with Hep C which would be aggravated by continued exposure to toxins at D's facility)

Andonia Bd. of Educ. v. Philbrook (1986)

Employers need only offer reasonable accommodations - whether an employee's preferred option or another - to meet their obligations under Title VII Employers do not have to show that each proposal would constitute undue hardship, as long as they have offered reasonable accommodations (P teacher's religion required him to miss 6 days per year but only allowed 3 for religious holidays - proposed alternatives to allow him to get full pay for taking more days off)

Disparate Impact

Employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and can't be justified by business necessity - no punitive or compensatory damages, but backpay available

Religious Discrimination

Encompasses all aspects 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 undue hardship on the conduct of the employer's business - includes new religions, religions that seem illogical - as long as belief is religious in the individual's own scheme of things (occupies place parallel to that filled by God)

EEOC

Equal Employment Opportunity Commission - agency level governmental organization charged with enforcing anti-discrimination laws Enforces Title VII, ADA, ADEA, Equal Pay Act, and Genetic Info Non-Discrimination Act

EEOC v. Union Independiente (2002)

Essential element to religious accommodation claim is that employee must have a bona fide religious belief. P must demonstrate both that the belief or practice is religious and that it is sincerely held (D not liable to P whose religion prohibited him from joining labor union because facts show that P conducted himself in several other ways that were inconsistent with his religious beliefs - not sincerely held)

Bottom-Line Defense to Disparate Impact

Even if particular practice has disparate impact on workforce, employer should still prevail because they have made adjustments to workforce in effort to alleviate the negative effects of the practice in question - rejected by SCOTUS

Ministerial Exception

Exemption for leaders within a religious organization - Government shouldn't be interfering too closely in the affairs of religious organizations and their ministerial employees. Judicially created exception

Ricci v. DeStefano as Affirmative Defense to Disparate Treatment

Fear of a disparate impact claim is only a defense to disparate treatment where there is a strong basis of evidence for that concern

Shaver v. Indep. Stave Co. (2003)

Harassment and retaliation claims can be brought under ADA P must show that he is a member of the class of people protected by the statute, that he was subject to unwelcome harassment, that the harassment resulted from his membership in the protected class, and that the harassment was severe enough to affect the terms, conditions, or privileges of his employment A record of an impairment - undisputed fact that P's major life activities were impaired by a condition - is sufficient to allege disability under ADA. (Epileptic P who was called "stupid" and "not playing with full deck" deemed to have record of disability under ADA)

Discrimination in Hiring

Hard to prove - little information about employer or reason for rejection, but is extremely prevalent

Hooters of America, Inc. v. Phillips (1999)

Hooters materially breached arbitration agreement by promulgating rules so egregiously unfair as to constitute a complete default of its contractual obligation to draft arbitration rules and to do so in good faith; rules so one-sided that only possible purpose is to undermine neutrality of the proceeding (P signed arbitration agreement, harassed at work, sued, refused to arbitrate after seeing arbitration rules for first time)

St. Mary's Honor Ctr. v. Hicks (1996)

If D carries burden of production, the presumption raised by the prima facie case is rebutted i. The determination that the D has met its burden of production involves no credibility assessment ii. At the close of D's case, the court is asked to decide whether an issue of fact to determine. None does if, on the evidence presented: 1. Any rational person would have to find the existence of facts constitute a prima facie case; and 2. The D failed to meet its burden of production - i.e., has failed to introduce evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action (Black P gets new supervisor, repeated discipline, fired, sues for race discrim - if fact finder doesn't believe D's reason must they find for P?)

Fragante v. Honolulu (1989)

If accent materially interferes with job performance, the decision not to hire P doesn't constitute discrimination on the basis of national origin - BFOQ (P was #1 candidate for job requiring constant public contact, not selected after interview, told accent was the reason)

National Railroad Passenger Corp. v. Morgan (2002)

If discrete act occurred 300 days before charge is filed, it is thrown out; If act occurring 300 days before charge filed represents ongoing unlawful employment practice, as long as one act is within 300-day window, entire act is considered within window - one cause of action (P claims discrim (discrete acts) and hostile environment throughout employment - not all within 300 days)

Jespersen v. Harrah's Operating Co., Inc. (2004)

In order to prevail on a Title VII disparate treatment sex discrimination claim, an employee need only establish that, but for his or her sex, he or she would have been treated differently - Employee must prove that employer acted intentionally, but intent need not have been malevolent Unequal burdens test for grooming and appearance standards: P must introduce evidence raising a triable issue of fact as to whether D's policy imposed unequal burdens on male and female employees (P was female bartender who refused to wear makeup even after D required it for females through new policy)

Race and Color Discrimination

Includes ancestry, physical characteristics, race-linked illness, culture, perception, association, subgroup or race plus (ex: someone who is black and some other protected category - pregnant, disabled, etc.) Color - pigmentation, complexion, or skin shade or tone - between persons of different races or ethnicities or between persons of the same race or ethnicity

Direct Threat Defense

Individual may not be qualified for job if they present a direct threat in the workplace - significant risk to the health or safety of others that can't be eliminated by reasonable accommodation Factors: 1) duration of the risk; 2) nature and severity of the potential harm; 3) likelihood that the potential harm will occur; and 4) imminence of the potential harm

Disparate Treatment

Intentional discrimination - individual attempts to prove employer discriminated because of protected characteristic - requires showing of intent (circumstantial or direct evidence)

EEOC Procedure

Investigate charge and issue letter of determination If EEOC finds no cause for discrimination, will issue P a right to sue letter If EEOC finds cause, conciliation - attempt to settle charge before it reaches court If no conciliation, consider litigation: 3 factors considered - claim on cutting edge of employment discrimination?, fact egregious or discrimination companywide?, does case implicate EEOC's enforcement authority? P may at any time request EEOC suspend investigation and issue right to sue letter EEOC will give 100% of any damages award to the claimant

RFOA Defense

It is acceptable to make an employment decision if that decision is based on a reasonable factor other than age - affirmative defense, D bears burden of proof

Ban the Box Movement

Legislation prohibiting employers from soliciting information about an individual's conviction history on a job application

Public Safety Exception

Mandatory retirement ages for police officers and firefighters are okay if it is at least 55 years and part of valid retirement plan

EEOC v. Abercrombie & Fitch Stores, Inc. (2015)

No actual knowledge is required for a religious accommodation. Instead, an applicant need only show that his need for an accommodation was a motivating factor in the employer's decision (P not hired by D because D had no-hat policy and assumed that P as Muslim required to wear headdress would require an accommodation even though P never asked for one)

Wal-Mart Stores, Inc. v. Dukes (2011)

No company-wide evaluation method or general policy of discrimination here - company is so huge, unbelievable that all managers would exercise their discretion in a common way without some common direction (Class action of 1.5 million women against Walmart - failure to promote, less wages than men - all such criteria is left to manager's subjective discretion - is there commonality?)

ADEA Damages

No compensatory/punitive damages - liquidated damages instead (back pay - doubled, front pay, attorney's fees) No statutory cap for damages

Hazen Paper v. Biggins (1993)

No disparate treatment under the ADEA when the factor motivating the employer is some feature other than the employee's age - if motivating factor is based on years of service rather than age, it is not age discrimination (D not liable under ADEA for firing 62 year old P a few weeks before his 10-year pension benefits kicked in - pension based on years of service, not age)

Imputing Liability

No individual liability under Title VII - must get employer through supervisor actions, co-worker hostile work environment, or proxy liability

Gross v. FBL Financial Services, Inc. (2009)

No mixed motives cases under ADEA or in Retaliation claims (P, 54, reassigned, considered it demotion, D defended with corp restructuring, court incorrectly instructed jury to find for P if they found age played any part in D's decision)

Lyle v. Warner Bros. (2006)

No reasonable trier of fact could conclude that such language constituted harassment directed at P - wasn't aimed at her or other women in the workplace, not severe or pervasive enough Writers were engaged in creative process - writing adult comedy - when the alleged harassing conduct occurred - 1st Amend protects such creativity (P was assistant on show Friends, writers made crude sexually jokes during writing sessions, P sues for harassment)

Sexual Orientation

Not protected under Fed law for private workers, employers must still be cautious, states and local juris have passed protective provisions

Johnson v. Transp. Agency (1987)

Not unreasonable to consider sex as one factor among many in making promotion decisions, D's actions didn't create absolute barrier to advancement of men. A public employer's decision to promote a female applicant pursuant to a voluntary affirmative action plan is fully consistent with Title VII's purpose of eliminating the effects of discrimination in the workplace 3-Part Test: 1) Affirmative action plan must be designed to break down old patterns of discrimination, 2) Plan must not unnecessarily trammel the rights of other employees, nor create an absolute bar to their advancement, and 3) The plan must be a temporary measure, not designed to maintain racial balance, but to eliminate a manifest racial imbalance (P was male passed up for promotion in favor of woman, D authorized ethnicity and sex as factor to increase minority representation)

Subjective v. Objective Criteria

Objective criteria typically includes examinations, education requirements, work experience, or licensing requirements - neutral, applied mechanically, and leave little room for use of discretion Subjective criteria typically includes interviews, performance appraisals not based on "hard" data, nepotism, and the use of promotion systems which selectively announce job openings - allow for use of discretion by decision maker; employer will draw on perspectives, beliefs, experience, and judgment.

Price Waterhouse v. Hopkins (1990)

Once a P shows that discriminatory animus played a motivating part in an employment decision, the employer may avoid liability only by proving by a PERPONDERANCE OF THE EVIDENCE that it would have made the same decision in the absence of the discriminatory animus (Female P was candidate for partnership, outstanding performance, not selected - needs to be more feminine)

Henderson v. Irving Materials (2004)

Once a Title VII P establishes that his work environment was both subjectively and objectively hostile, he must also establish a basis for employer liability; To establish employer liability where the harasser is a co-worker, P must show that the employer was negligent in either discovering or remedying the harassment. (P was black, harassed by co-workers, complained to manager, manager did nothing, P was transferred)

Dediol v. Best Chevrolet, Inc. (2011)

P can establish hostile work environment based on age discrimination under ADEA if he shows: 1) Over age of 40; 2) Subjected to harassment, either through words or actions, based on age; 3) Nature of harassment was such that it created an objectively intimidating, hostile, or offensive work environment; and, 4) There exists some basis for liability on the part of the employer. P must demonstrate that harassment was both objectively and subjectively unreasonable - Objective - consider totality of circumstances (frequency, severe/pervasive) (P constantly berated, provoked, threatened by manager and called old satisfied hostile work environment claim)

Texas Dep't of Cmty. Affairs v. Burdine (1981)

P has burden of establishing prima facie case of disparate impact by a preponderance of the evidence; Burden then shifts to employer to produce nondiscriminatory reasons - Burden of PRODUCTION, not persuasion; Employer must only introduce enough evidence of a nondiscriminatory reason (clear and reasonably specific) (Female P's position reworked and male hired in her place, she is rehired in another position for same pay - sues for sex discrim - P makes prima facie, court says D has burden of proof of justification)

Ashcroft v. Iqbal (2009)

P must plead sufficient facts to show D implemented policy of classifying detainees "of high interest" because of their race, religion, or national origin; Court must accept as true all allegations contained in complaint, but eliminate all legal conclusions; Plausibility standard remains (P Pakistani Muslim detained after 9/11 claims harsh discrim treatment based on race and condoned by D Ashcroft and Mueller)

Univ. of Texas v. Nassar (2013)

P must prove that employer wouldn't have taken action but for the existence of improper motive, must be demonstrable causal link between injury and wrong alleged (D requires hospital openings be filled by D faculty, P leaves faculty after harassment and is offered hospital job and D protests - P claims retaliation)

Adverse Action

P must show that reasonable employee would have found the challenged action materially adverse - might have dissuaded a reasonable worker from making or supporting a charge of discrimination Must show causal link between protected conduct and adverse action - timing is key

Qualified Under ADA

P must show: 1) They satisfy the requisite skills, education, experience and other job-related requirements of the employment position that the individual holds or desires, and 2) They can perform the essential functions of such position with or without reasonable accommodation

EEOC v. Houston Funding II (2013)

P stated prima facie case of sex discrim, should have gone to jury - Pregnancy Discrim Act provides for discrim based on pregnancy, child birth or related medical condition (includes lactation) (Pregnant P took leave of absence, maintained contact, terminated after she requested lactation room, D claimed she didn't maintain contact during leave)

Constructive Discharge

P voluntarily quits jobs under circumstances where reasonable person would have left the position

Reeves v. Sanderson Plumbing (2000)

P's prima facie case of discrimination, combined with sufficient evidence for a reasonable fact finder to reject the employer's nondiscriminatory explanation for its decision, may be adequate to sustain a finding of liability for intentional discrimination under ADEA (P, 57, fired for timekeeping errors, claims age discrim and pokes holes in D's justification for firing - does he need evidence of discrim or is rebutting D's justification sufficient?)

Zarda v. Altitude Express, Inc. (2018)

P's sexual orientation discrim claim was actionable subset of sex discrim - defined by one's sex in relation to sex of those to whom one is attracted, making such discrim impossible without considering sex, based on stereotypes about to whom members of a particular gender should be attracted, motivated by D's opposition to association between members of particular sexes P had cognizable sex discrim claim because he alleged he failed to "conform to the straight male macho" stereotype

Graham v. St. John's United Methodist Church (2012)

Permanent brain damage which causes difficulty in articulating thoughts, slowness to comprehend, and difficulty challenging authority figures is sufficient to allege mental impairment covered by ADA (P who was assaulted resulting in brain damage considered disabled under ADA)

Bona Fide Occupational Qualification

Permits employers to discriminate on basis of sex, national origin, or religion where such discrim is reasonably necessary to the normal operation of the business - can never discriminate based on race or color

Young v. United Parcel Serv., Inc. (2015)

Pregnant women must be treated the same as people with other temporary disabilities (P was pregnant, requested same accommodations provided to other temporarily disabled employees, denied accommodations)

Americans with Disabilities Act Amendments Act

Provides that mitigating measures may NOT be taken into account when determining whether an individual is disabled 2 exceptions: ordinary eyeglasses and contact lenses

Trans World v. Hardison (1986)

Reasonable efforts to accommodate P do not require D to bear more than de minimis cost (P's proposed accommodation to violate seniority system to give P Saturdays off would be undue hardship)

Burlington N. v. White (2006)

Reassignment with different job responsibilities and suspension without pay was retaliatory discrim (P is only woman, qualified for job, complains of harassment, removed from job when men complain that a man should do her job)

Direct Evidence

Reflects a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee that, if believed, proves the existence of a fact without inference or presumption 4-Part Test to Determine Sufficiency to Overcome SJ: 1) related to the protected class; 2) proximate in time to the termination; 3) made by an individual with authority over the employment decision at issue; and 4) related to the employment decision at issue

Hoffman Plastic v. NLRB (2002)

Relief of backpay is foreclosed by federal immigration policy - awarding backpay to undocumented worker would encourage successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations - counter to explicit statutory policy (Castro fired by P along with others bring claim for wrongful termination, D says they must be reinstated with backpay, but find out Castro is illegal immigrant)

Disparate Treatment in Age Discrimination

Requires employee to establish that: 1. Over 40 years old; 2. Met the applicable job qualifications; 3. Suffered an adverse employment action; and 4. There is some additional evidence that age was a factor in the employer's termination decision Burden shifts to employer to articulate a legitimate nondiscriminatory reason for its adverse employment action Then burden shifts back to P to show the employer's reason was pre-textual

English-Only Rules

Restrictions on the ability of employees to speak any language other than English at work EEOC - if rule says only English can be spoken at all times it is per se national origin discrimination As long as there are exceptions to rule, it is presumed to be disparate impact but employer can justify policy through business necessity

Hosanna-Tabor v. EEOC (2012)

SCOTUS recognizes ministerial exception Ministerial exception applies because P is ministerial employee - job title, use of title, substance of job, religious functions actually performed (P was teacher who had title of minister, prayed with kids, etc., developed narcolepsy and had to take time off, replaced and wasn't allowed to come back to work - argued disability discrimination)

Unlawful Medical Inquiries

Separate cause of action to pursue employers who have asked improper medical question or have performed an unlawful medical exam 1. Can ask if applicant has ability to perform all functions, can ask applicant to demonstrate how they would carry out the essential duties - Must ask these questions of all applicants 2. Can ask someone with obvious disability what type of accommodation they may need After employment offer made, can inquire about disabilities or require medical exam if required of all workers. Once employee begins work, can't make inquiries or require exam unless shown to be job-related and consistent with business necessity.

Equal Pay Act

Separate statute from Title VII - men and women must be paid the same for performing equal work - can bring sex discrim claim under Title VII at same time Only addresses pay discrim in context of gender discrim Doesn't require showing of intent (Title VII does) 3 Factors: 1) P performing work substantially equal to employees of opposite sex, considering skills, duties, supervision, effort, and responsibilities; 2) Conditions basically the same; 3) Employees of opposite sex were paid more Burden shift to D to establish statutory exception (seniority system, merit system, system measuring earnings by quantity/quality of production, any factor other than sex) P has 2 years to file claim

Harris v. Forklift Systems, Inc. (1993)

So long as environment would reasonably be perceived, and is perceived, as hostile or abusive, there is no need for it also to be psychologically injurious Look at the circumstances: frequency of conduct, severity, physically threatening/humiliating or just offensive utterance, unreasonably interferes with employee's work performance, employee's psychological well-being (no single factor is required) (P constantly insulted based on gender by D's president)

Proxy Liability (Imputing Liability - Harassment)

Someone so high up at company does the harassing - as if the company itself is harassing (no one to complain to; liability - no access to affirmative defense)

McDonnell Douglas Corp v. Green (1973)

Test for determining whether or not discriminated against when only circumstantial evidence: 1) Belongs to racial minority; 2) Applied and qualified for job for which employee was seeking applicants; 3) Despite qualifications, was rejected; 4) After rejection, positions remained open and employer continued to seek applicants from persons of complainant's qualifications - once P proves prima facie, burden of production on D to articulate legitimate, nondiscriminatory reason for action - burden then shifts back to P to show that D's reason was pretext for discrim (Black P during civil rights movement laid off in workforce reduction, reapplies, denied job based on participation in unlawful protests against D - claimed race discrim)

Griggs v. Duke Power Co. (1971)

Test to analyze disparate impact claims: 1) P must show that D has adopted a facially neutral policy or practice that has a discriminatory impact on a protected group; and 2) The D can still prevail by establishing that the requirement is job related and consistent with a business necessity; and 3) Even in the face of a business necessity, the employee can show that there are policies available that have less discriminatory impact but still serve the employer's business needs (Black P claims race discrim - promotions only if high school diploma and pass test unrelated to job)

EEOC V. Heartway Corp (2006)

The "regarded as having a substantially limiting impairment" standard may be met when a person has a physical or mental impairment that doesn't substantially limit major life activities but is treated by covered entity as constituting such limitation (P with Hep C fired from kitchen job after employer found out able to recover for disability discrimination - employer treated Hep C as significantly restricting her ability to perform class of jobs)

Wards Cove Packing Co. v. Atonio (1989)

The proper comparison in racial disparity cases is between the racial composition of the at-issue jobs and the racial compositions of the qualified population in the relevant labor market - the fact that one class of jobs at a firm has a higher percentage of non-whites than another class does not, by itself, prove that the firm practices discriminatory hiring Impact on Griggs Analysis: 1) In order to establish prima facie case, a P must demonstrate that it is the application of a specific or particular employment practice that has created the disparate impact under attack; 2) The burden then shifts to the employer to produce evidence of a business justification for his employment practice; 3) The P could still prevail if it can show the availability of alternative practices to achieve the same business ends, with less racial impact (Racial disparity - skilled jobs to white workers - nonwhites bring disparate treatment and impact claims)

Jury Trials

Title VII altered in 1991 to provide that any party may demand jury trial if complaining party seeks compensatory or punitive damages Standard: a legally sufficient evidentiary basis to support a jury verdict

Oncale v. Sundowner Offshore Servs., Inc. (1998)

Title VII bars all forms of discrimination 'because of' sex. Such discrimination, whether motivated by sexual desire or not, is actionable so long as it places its victim in an objectively disadvantageous working condition, regardless of the victim's gender - no justification for categorical rule excluding same-sex harassment claims from coverage (P is man working on oil rig with other men, sexually harassed, feared rape, claimed sex discrim against other men)

Meritor Savings Bank, FSB v. Vinson (1986)

Title VII is not limited to economic or tangible discrimination but also provides protection from hostile or abusive work environments - must be sufficiently severe or pervasive to alter the conditions of victim's employment and create abusive working environment (objective and subjective - P and outsider looking in must both find it severe and pervasive) (P fired for using excessive sick leave - claims sex harassment over 4 years - slept with manager out of fear of termination)

EEOC v. Red Robin Gourmet Burgers, Inc. (2005)

Title VII prohibits employers from discharging an employee based on the individual's religion unless the employer demonstrates it is unable to reasonably accommodate an employee's religious observance or practice without undue hardship - P must show bona fide religious belief (P's belief that covering his tattoos is a sin with notice to employer of conflict with dress code was sufficient for prima facie case)

McDonald v. Santa Fe Trail Transp. Co. (1976)

Title VII prohibits racial discrimination against white P in this case upon the same standards as would be applicable were they black. Title VII prohibits all racial discrimination in employment, without exception for any group of particular employees, and while crime or other misconduct may be a legitimate basis for discharge, it is hardly one for racial discrimination (White P fired after theft but Black co-worker also involved not fired - sue for race discrim)

Ocheltree v. Scollon Productions Inc. (2003)

To establish Title VII claim for sexual harassment in the workplace, a female P must prove that the offending conduct was: 1) unwelcome; 2) based on her sex (requires proof - are members of one sex exposed to disadvantageous terms or conditions of employment); and 3) sufficiently severe or pervasive (objectively and subjectively) to (negatively) alter the conditions of her employment and create an abusive work environment; and 4) imputable to employer (P sues for hostile environment - D gets JMOL - not severe or pervasive enough)

National Origin Discrimination

Treating someone less favorably because that individual (or his or her ancestors) is from a certain place or belongs to a particular national origin group (ethnicity, physical/linguistic/cultural traits, perception - employer's belief that employee is part of particular group)

Arbitration

Typically waive right to federal court, arbitrator's decision is binding, relaxed discovery and other procedural rules, quicker and cheaper than trial Agreement must be signed by employee, subject to Fed Arbitration Act EEOC isn't bound by individual's arbitration agreement - can sue employer in fed court and court won't view individual P's arbitration decision as binding

Ledbetter v. Goodyear Tire & Rubber Co. (2007)

Under Title VII, discriminatory intent must occur during the 180-day charging period with the EEOC (P filed pay discrim claim based on pay decisions prior to 180 day period) NO LONGER GOOD LAW - Lilly Ledbetter Fair Pay Act of 2009

Retaliation

Unlawful for employer to discriminate against employees because employee has opposed any unlawful employment practice or made charge, testified, assisted, or participated in investigation, proceeding, or hearing P must establish by preponderance of evidence: a. Engaged in protected activity; b. Subjected to adverse employment action; and c. Causal link between protected activity and adverse action Extends to former employees and those who refuse to engage in discriminatory conduct Once P establishes elements, Burden of prod to D to establish nondiscriminatory reason, then burden back to P to show pretext

Volunteers

Usually not considered employees - some states have created statutes for employer-volunteer relationship

Educational Exception

Where a school is religious in nature, and satisfies the terms of the statute, that institution can choose to hire individuals who share a common faith without running afoul of the statute

Pennsylvania State Police v. Suders (2004)

Where an employee resigns as a result of sexual harassment, the employee may assert a Title VII constructive discharge claim where the employee can show that the "working condition became so intolerable that a reasonable person in the employee's position would have felt compelled to resign." - D can assert affirmative defense from Ellerth (P claims constructive discharge after supervisors repeated sexually harassing conduct, devised plan to arrest her for theft of files)

Burlington Indus., Inc. v. Ellerth (1998)

Where no tangible employment action and supervisor perpetrated harassment, employer claim 2-part affirmative defense by showing: 1) employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and 2) P employee unreasonably failed to take advantage of any preventive or corrective opportunities provide by the employer or to avoid harm otherwise No damages if D successfully shows affirmative defense (P constantly harassed by supervisor - not upper management or her direct supervisor - no evidence employer was negligent, sues for harassment and constructive discharge)

Rauen v. U.S. Tobacco Manufacturing Ltd. Partnership (2003)

Whether a requested accommodation is reasonable or not is a highly fact-specific inquiry and requires balancing the needs of the parties. Working at home is rarely a reasonable accommodation is because most jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation (P with lots of medical issues wanted to work from home except when necessary to be in office - not reasonable, already performing job without accommodation)

Reverse Discrimination

White individual alleges discrimination because of race

Major Life Activities Under ADAAA

Working, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others

Title VII of the Civil Rights Act of 1964

prohibits discrimination against employees on basis of race, color, sex, national origin and religion (employer must have 15 employees to apply); created the EEOC

Americans with Disabilities Act

prohibits discrimination against individuals with disabilities in the workplace against employers with at least 15 or more employees

Age Discrimination in Employment Act of 1967

prohibits discrimination in the workplace on the basis of age - 40 years or older against employers who employ 20 or more workers