Connell Employment Discrimination

Determining Hostile or Abusive Environment

(1) Frequency of discriminatory conduct (2) Severity, whether it is physically threatening or humiliating, or a mere offensive utterance (3) Whether it unreasonably interferes with an employee's work performance (4) The effect on the employee's psychological well-being

Qualified Individual

(1) Has skills, experience, and other job-related requirements needed for position (2) Is able to perform essential functions of job with or without reasonable accommodation Examples of not qualified: truck driver with seizure disorder who takes medicine to control seizures but cannot get a DOT driver's license which is required for the job

Ask Plaintiff Sexual Harassment Client

(1) Have you filed an EEOC charge? - [if pursuant to Title VII]. You can also file sexual harassment claim under Title IX and 14th Amendment (2) Did the employer have knowledge? Was the conduct so pervasive that they should have known? (3) What was the type of conduct? (4) Have you talked to anyone else about this conduct? Or have seen it?

What is a disability?

(1) Having a physical or mental impairment (2) Having a record of a physical or mental impairment, or (3) Being regarded as a person with a physical or mental impairment . . . . . . that substantially limits one or more major life activities When assessing potential disabilities, you must look at the person's impairment in an unmitigated state (e.g., without medicine, episodic or in remission).

Liability for Negligence Harassment

*An employer is negligent with respect to sexual harassment if it knew or should have known about the conduct and failed to stop it. Notice plays an important role in claims of co-worker harassment. Employers are held liable for co-worker sexual harassment that they knew or should have known was occurring and failed to stop.* Under a negligence standards, employer will NOT be liable for co-worker sexual harassment if it responds to the harassment with "immediate and appropriate corrective action." An employer can also be liable for harassment made by customers and other third parties.

4 Affirmative Defenses to EPA Claim

(i) a seniority system, (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; (iv) a differential based on any other factor other than sex

11th Amendment

*A private individual cannot sue the government for money damages without its consent BUT they can sue for injunctive relief. Although individuals are barred by the 11th amendment from suing states for damages for employment discrimination under the ADEA and ADA, when the federal gov't (and EEOC) prosecutes such cases in federal court, states are not immune from monetary damages even when damages are sought on behalf of individuals.* Bars suits by state employees against nonconsenting states in federal courts. Bd. of Trustees of Univ. of Ala. v. Garrett - 11th amendment bars private ADA suits against nonconsenting states for money damages in federal courts. *11th amendment sovereign immunity does not extend to local government units such as cities and counties!*

Attorney's Fees

*American Rule: parties must bear their own costs and attorney's fees.* A fee-shifting statute empowers a court to require one party to pay the other party's attorney's fees or attorney's fees and costs. Only the "prevailing party" is entitled to attorney's fees. *All of the major federal statutes prohibiting discrimination in employment have fee-shifting provisions. Determining who is a "prevailing party" is a key to the award of fees.*

Customer Preferences

*Courts have consistently held that customer preferences do not satisfy BFOQ!*

Reconstruction Era Civil Rights Legislation

§ 1981 prohibits discrimination on basis of race and national origin; § 1983 provides individuals a cause of action for deprivation of rights guaranteed by constitution

Essential Functions of the Job

*Does the job 'exist' to perform that function?* Ex: The job of a front desk clerk in a hotel is to check the guests in. On occasion, a guest needs help with their bag - and you have an individual who can't lift more than 10 pounds. Is handling luggage an "essential function" of the front desk clerk? In hotels where there is a bellperson available - probably not - it would be rare that the front desk clerk would ever handle bags.

Comments in the Workplace

For comments in the workplace to provide sufficient evidence of discrimination, they must be: (1) related to the protected class of persons of which the plaintiff is a member (2) proximate in time to the terminations (3) made by an individual with authority over the employment decision at issue (4) related to the employment decision at issue

Equal Opportunity (Disparate Impact)

Formal equality is meaningless so long as pervasive inequality is a social reality. Affirmative action. Justice Blackmun in Univ. of Calif. v. Bakke: "In order to get beyond racism, we must first take account of race. In order to treat some persons equally, we must treat them differently." *Employer had a rule that was enforced against everyone, but it had a negative impact on a protected group.* *Griggs v. Duke Power Co. - legislative purpose of Title VII was to achieve equality of employment "opportunities" and to remove "barriers" to such equality.*

Compensatory Damages

Future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, other nonpecuniary losses. EEOC says that the following are also recoverable as compensatory damages: Injury of professional standing, Injury to character and reputation, Injury to credit standing, Loss of health, Aggravation of preexisting emotional difficulties if further deterioration is caused by the employer's conduct

Same Actor Defense

Majority of circuit courts have endorsed the same-actor inference or defense, where the *same supervisor both hired and fired an employee and the period between the hiring and firing is relatively short, the employer is entitled to an inference that the discharge was not motivated by discriminatory animus.* Relatively short = a month is a strong case. Beyond 3 years is too long.

Congressional Accountability Act of 1995

Makes 11 civil rights and labor laws applicable to the legislative branch of the federal government

Raytheon v. Hernandez

Man tested positive on drug test, forced to resign. Rehabilitated. Applies after rehabilitation. Company had policy not to hire anyone previously fired. P sued under disparate treatment. *Company's no-hire policy is legitimate, nondiscriminatory reason for refusing to rehire. Both disparate-treatment and disparate-impact theories apply under ADA.*

Age Discrimination in Employment Act of 1967 (ADEA)

Protects employees and applicants on the basis of age who are over 40

Affirmative Defense Hostile Work Environment

Prove by preponderance of the evidence: (1) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior (2) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. NO affirmative defense is available for quid pro quo, such as discharge, demotion, or undesirable reassignment.

Bumping

Pushing someone out of their position to give it to someone with lesser seniority

Reeves v. Sanderson Plumbing

Question: Is a plaintiff's prima facie case of age discrimination, combined with sufficient evidence for a reasonable factfinder to reject the employer's nondiscriminatory explanation for its decision, adequate to sustain a finding of liability for intentional discrimination under the Age Discrimination in Employment Act of 1967? Holding: Yes. In a unanimous opinion deliver by Justice Sandra Day O'Connor, the Court held that *"[a] plaintiff's prima facie case of discrimination, combined with sufficient evidence for a reasonable factfinder to reject the employer's nondiscriminatory explanation for its decision, may be adequate to sustain a finding of liability for intentional discrimination under the ADEA."* The ruling means that an employer is liable to a former employee under the Age Discrimination in Employment Act of 1967 if a reasonable jury can find that the employer's explanation for the employee's dismissal was pretext for discrimination.

2 Theories of Sexual Harassment

Quid Pro Quo and Hostile Work Environment

Prior Sexual History

Rape shield law (Rule 412) extends to sexual harassment cases. *Evidence of prior sexual history is NOT admissible!*

Gender Identity

Refers to a person's innate, deeply felt psychological sense of gender, which may or may not correspond to the person's body or designated sex at birth.

Denying Reinstatement

Reinstatement may be denied if employer can prove: (i) an *"innocent employee" currently occupies the job* and should not be bumped (innocent employee rule); and, (ii) when hostility or animosity between the plaintiff and employer would make an amicable and *productive working relationship impossible.* Reinstatement & monetary damages are the forms of relief that courts have ordered most frequently.

Rene v. MGM

Rene, an openly gay man, alleged that he was sexually harassed by his male coworkers (physical conduct of a sexual nature). Whether an employee who alleges that he was subjected to severe, pervasive, and unwelcome "physical conduct of a sexual nature" in the workplace asserts a viable claim of discrimination based on sex even if the employee also alleges that the motivation for that discrimination was his sexual orientation. *An employee's sexual orientation is irrelevant for purposes of Title VII. It neither provides nor precludes a cause of action for sexual harassment. It is enough that the harasser has engaged in severe or pervasive unwelcome physical conduct of a sexual nature.* Plaintiff in this case stated a cause of action for sexual harassment under Title VII. The premise of a sexual hostile work environment claim is that the conditions of the work environment have been made hostile "because of sex."

ADAAA of 2008

Broadened coverage after a series of Supreme Court cases restricting coverage. Changed the prohibition from discrimination against an "individual with a disability" to *"on the basis of disability,"* and clarified the prohibition against discrimination on the basis of "being regarded" as having a disability.

Disability Discrimination Notes

"Covered Entities" - Private employers with 15 or more employees Federal Employers - Federal government is specifically excluded from coverage under the ADA because the Rehab Act of 1973 currently protects federal employees from discrimination because of disabilities State and Municipal Employers - 11th Amendment bars private ADA actions against non-consenting states for money damages Exhaustion of administrative remedies same as under Title VII

Meaning of Religion

"Religion" includes "all aspects of religious observance and practice, as well as belief." Includes non-traditional faiths and practices that are sincerely held with the strength of traditional religious views, such as Native American spiritualism, Wicca (witchcraft), and atheism. What about the KKK? Courts have held both ways. But majority says not a religion, because when the thrust of the organization is a political or social goal, it will be classed as secular.

Gender Expression

Describes the ways that people, regardless of biological sex, outwardly display traits, behaviors, and styles of dress and grooming that are socially and culturally assumed to be masculine or feminine.

Substantially Equal Under EPA

Equal work does not have to be identical. The plaintiff must show that the two jobs in question are "substantially equal." If they are basically the same job. Courts consider the duties actually performed in the two comparative jobs, not the title or job description used by the employer.

Compensatory and Punitive Damages

ONLY for intentional discrimination

Genetic Information Nondiscrimination Act of 2008

Prohibits discrimination by employers and insurers on basis of genetic information about potentially inheritable diseases

Price Waterhouse Significance

(1) *"Mixed-motive" evidentiary framework* and burdens of proof for litigating Title VII claims in which both legitimate and illegitimate motives play a role in an employer's adverse employment decision (2) The Court acknowledged the role that sex stereotyping can play in limiting women's employment opportunities and *permitted the plaintiff to use evidence of sex stereotyping* in the employer's decision-making process to support her discrimination claim. O'Connor's concurring opinion - "substantial factor" shown by direct evidence. Lower courts use this because the standard is much higher; get rid of cases by requiring direct evidence

Scalia 3 Evidentiary Routes for Proving Same-Sex Harassment "Because of Sex"

(1) If there was credible evidence that the harasser was homosexual (2) If a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace (3) Comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace

Ask Defendant Sexual Harassment Client

(1) Is there a record? Personnel file, investigatory file. Don't tip off the alleged sexual harasser - don't want it to snowball into a retaliation claim.

Protected Categories

1. Race 2. Color 3. National Origin 4. Sex 5. Religion

Salary Retention or Red-Circling

An employer transfers an employee from a higher paid skilled job to a less demanding position but continues to pay the employee the same salary. You "red circle" so that if you need that person to be moved up again, you know to promote them. Sometimes done for economic reasons - to keep the employee available if needed in the future. Courts have held that this can be an affirmative defense to an EPA claim.

Transgender

An umbrella term to denote transsexuals, transvestites, crossdressers, and anyone else whose gender identity or gender expression varies from the dimorphic norm.

Hostile Work Environment

To be actionable, the conduct must be: (i) Severe or pervasive; and (ii) Unwelcome.

Sexual Orientation

A person's enduring physical, romantic, emotional and/or spiritual attraction to another person.

Undue Hardship Limitation

"Undue hardship" means "significant difficulty or expense" in relation to size of employer and its resources. Consider whether: unduly costly, extensive, disruptive, would fundamentally alter the nature or operation of business. *An employer doesn't have to make a reasonable accommodation if it would impose an "undue hardship"* BUT *employer must consider alternative accommodations!*

Types of Accommodations

(1) Job restructuring or modification. Changing the timing, method or manner in which an essential function is done; Reallocating or redistributing marginal/non-essential job functions). (2) Modified work schedule (e.g., altering arrival/departure times; flex-time schedule; provide additional breaks). (3) Shift change. If the "shift" is an essential part of the employee's job - no need to modify (4) Policy modification. Most common modifications include: modifying your "no-fault" attendance policy; modifying your maximum leave of absence policy. You never have to modify uniformly applied quality or production requirements or conduct rules as a reasonable accommodation. (5) Acquiring or modifying equipment. (e.g., no-glare computer screens, ergonomic chairs - but don't have to provide personal use items like glasses or hearing-aids). (6) Medication or treatment. Employer can't force employee to take medication or get treatment as reasonable accommodation. But - employee might not be qualified for job unless he/she takes necessary medicine or gets treatment. (7) Job Reassignment. May be required if no other accommodation available. Position must be available/open (not created); Not available to applicants; No bumping required; No promotion required; Only reassign if employee is qualified (8) Unpaid Leave. There must be an expected return to work date - indefinite leave is not required.

Filing Lawsuit with EEOC Step One

(1) Must first file a charge of discrimination with EEOC (unless you plan to file under Equal Pay Act, which allows you to go directly to court without filing a charge). *180 days if in non-deferral state (MS) or 300 days if within deferral state.* Determining when an issue happened can be hard, especially in cases in which a plaintiff relies upon a series of alleged adverse employment actions, some of which fell within and some outside of the 300 or 180-day period. EEOC fills out an "Intake Questionnaire" and provides background information on the plaintiff and the alleged wrong. Sign "Charge of Discrimination" form, check box for race, gender, etc. protected categories. A charge is sufficient when the EEOC receives from the person making the charge a written statement sufficiently precise to identify the parties and to describe generally the action or practices complained of. The scope of the charge will later define the permissible causes of action if a complaint is filed in court.

2 Steps for Establishing Liability in Disparate Impact Cases

(1) P must prove that an identified selection device or system has an *impact on plaintiff's class that is "adverse."* (2) If P establishes adverse impact, the burden of proof shifts to D: (i) Under Title VII and the ADA, *defendant must prove that the challenged device is "job related" and "consistent with business necessity."* (ii) Under the ADEA, defendant must prove that the challenged device is a "reasonable factor other than age."

McDonnell Douglas Framework for Prima Facie Case of Retaliation

(1) P was engaged in *statutorily protected conduct* (2) P suffered a *materially adverse action* at the hands of the employer (3) *Causal link* exists between the protected activity and the adverse action (employer retaliated quickly after P doing something)

3 Factual Schemes of Disparate Treatment

(1) Single-motive or "Pretext" cases (2) Mixed-motive cases (3) Pattern-or-practice cases At the time the complaint is filed, the plaintiff is not required to specify which of these proof and analytical schemes she intends to rely upon, but at some point during the trial, the district court must determine which evidentiary scheme is appropriate in order to decide the merits of the case or to instruct the jury if it is a jury trial.

Filing Lawsuit with EEOC Step 2

(2) EEOC will notify the employer that a Charge of Discrimination has been filed against them. First question is "how many employees do you have" - the amount of recoverable damages are based on number employees. The employer is asked to give a written answer to the charge, called the Respondent's Position Statement.

Filing Lawsuit with EEOC Step 3

(3) EEOC will often seek to resolve the charge informally (through mediation), and if that fails, the agency conducts an investigation.

Filing Lawsuit with EEOC Step 4

(4) EEOC has 180 days to conduct an investigation. Once 180 days goes by, EEOC must have either rendered "cause" or "no cause" determination. If it decides the discrimination was the underlying cause of the challenged action, it will issue a "cause" determination explaining its basis for the decision and inviting the employer into settlement talks. If it determines that discrimination was not involved, will issue a "no cause" determination. If more than 180 days have passed, EEOC is required by law to issue Right to Sue Notice. If fewer than 180 days, EEOC will only give charging party the Notice if it will be unable to finish its investigation within 180 days.

Filing Lawsuit with EEOC Step 5

(5) If you want to file a lawsuit before EEOC has completed its investigation, charging party can request a "Notice of Right to Sue." Once the Notice of Right to Sue has been issued, the EEOC will stop its investigation, so *don't request Right to Sue if you want the EEOC to keep investigating the charge.*

Filing Lawsuit with EEOC Step 6

(6) Once the charging party obtains Right to Sue, either by request or after a cause determination, must file suit within 90 days. You must have a Right to Sue letter to sue in state or federal court (concurrent jurisdiction). Most Title VII suits are filed in federal court. Presumption that the charging party received the Right to Sue letter in the mail within 3 business days. The scope of the charge later defines the permissible causes of action if a complaint is filed in federal court - a plaintiff's judicial complaint is confined to the scope of the administrative investigation that can reasonably be expected to flow out of the charge.

Filing Lawsuit with EEOC Step 7

(7) In select cases, the EEOC will file an employment discrimination lawsuit itself (but not typical). The employee has the right to intervene on the lawsuit if they want.

Reasonable Accommodation Interactive Process

*Formal documentation and must include informal conversations with the employee.* It may or may not include a request for medical information from or medical examination by a health care provider. *Is there anything you need that would make it easier for you to perform your job?* Focus on job-related restrictions/limitations (see job description) rather than the underlying disability/condition. Typically arises in one of three ways: (1) Employer observes that employee may need an accommodation. Objective, job-related observation. (2) An employee requests an accommodation. (3) Employee returns to work from, or requests an extension of, a leave of absence.

11th Amendment and ADEA

*Kimel v. Florida Board of Regents: Eleventh Amendment immunity bars state employees from bringing private actions for monetary damages against nonconsenting states for violations of the ADEA.*

Liquidated Damages

*Liquidated Damages under the Equal Pay Act and the ADEA are an additional amount awarded to the plaintiff that is equal to the back pay award.* Under ADEA and FLSA, liquidated damages are simply double (unpaid wages) damages. Viewed as a substitute for punitive damages. Different from meaning in contract law. *Recoverable under ADEA where there is a willful violation: whether employer "knew or showed reckless disregard" whether conduct prohibited by ADEA.*

Gross v. FBL Financial Services, Inc.

*Mixed Motive DOES NOT APPLY TO ADEA.* Gross sues under ADEA for demotion. (1) Whether a plaintiff must present direct evidence of age discrimination in order to obtain a mixed-motive jury instruction in a suit brought under the ADEA; and (2) Whether the burden of persuasion ever shifts to the party defending an alleged mixed motives discrimination claim brought under the ADEA. *SCOTUS has never held that this burden-shifting framework applies to ADEA claim*

Reasonable Hourly Rate

*Prevailing Market Rate*: Those rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation

Family Responsibilities Discrimination

*There is no federal law prohibiting discrimination on the basis of family responsibilities.* Chadwick v. Wellpoint, Inc. (sex-plus discrimination case): asking female job-applicants whether they are, or are planning to become pregnant, will be pregnancy discrimination if the woman applicant is not selected based on her response. Even questions asked of all applicants, such as "family plans," number of children, and child care responsibilities may suggest that in rejecting a woman, the employer made stereotyped distinctions between men and women regarding such family responsibilities.

Griggs v. Duke Power Co.

*ULTIMATE DISPARATE IMPACT CASE.* Neither the high school education requirement nor the general intelligence test is shown to bear a demonstrable relationship to successful performance of the jobs for which it was used. A facially neutral employment practice that has a substantial adverse effect on the employment opportunities of members of a protected class constitutes unlawful employment discrimination unless justified by business necessity. "What Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract." "The facts of this case demonstrate the inadequacy of broad and general testing devices as well as the infirmity of using diplomas or degrees as fixed measures of capacity." *Disparate effects can be justified where the test is related to (i) Business necessity, and (ii) Reasonable measure of job performance*

Employer Liability for Discriminatory Harassment

*Vicarious Liability for Harassment by Supervisors: An employer may be vicariously liable for discriminatory harassment committed by its agents!*

McDonnell Douglas Corp v. Green

1. *Complainant in a Title VII trial must carry the initial burden of establishing a prima facie case of discrimination.* 2. SCOTUS remanded the case so that Green would have a chance to show pretext. 3. *McDonnell Douglas 3-Step Model of Shifting Evidentiary Burdens*

Disparate Treatment

1. Employer treats some people less favorably because of their race, color, sex, religion, or national origin (most cases based on this theory). 2. Proof of discriminatory intent is critical 3. Disparate treatment theory is based on judicial construction of McDonnell Douglas Corp. v. Green. *Most widely cited employment discrimination case.* 4. When a plaintiff seeks relief in an employment discrimination case under the disparate treatment theory, the critical issue for the factfinder is *whether the plaintiff has proven that she has suffered an adverse employment practice based upon unlawful discrimination.*

Factors to Consider for Essential Job Function

1. Employer's judgment 2. Written job descriptions 3. Work experience of those in the job 4. Amount of time spent performing the function 5. Consequence of not performing the function 6. Availability of others to perform the function

Disparate Treatment v. Disparate Impact

1. Equal Protection Clause: disparate treatment only (Washington v. Davis) 2. Title VII: disparate treatment or disparate impact BUT can't sue university specifically for money damages, only prospective injunctive relief/reinstatement 3. § 1981: disparate treatment only, 4 year statute of limitations 4. § 1983: provides exclusive federal cause of action for damages for deprivations of rights under § 1981, only applies to public actors NOT private.

Other Examples of Disparate Impact

1. Height and weight requirements for maximum security prison guards - disparate impact on females 2. Policy limiting employment opportunities of methadone users - disparate impact on minorities 3. Policies limiting employment opportunities because of prior criminal convictions - disparate impact on blacks 4. Certain grooming requirements - ex. Certain black men don't want to shave because it irritates their skin

Disparate Impact

1. Involves employment practices that are facially neutral in their treatment of different groups, but in fact fall more harshly on one group than another and cannot be justified by business necessity. 2. Proof of discriminatory intent is not required in disparate impact cases. 3. Disparate impact based on landmark Supreme Court case *Griggs v. Duke Power Co.*

Judicial Enforcement

1. Must exhaust administrative remedies. 2. EEOC's determination has no binding effect in judicial proceeding. 3. Only time court gives deference to EEOC is when to determine whether it's a valid claim for discrimination. 4. 90 day rule to file civil action is not jurisdictional.

2 Parts of Retaliation Statute

1. Opposition Clause - employee spoke out about an unlawful practice 2. Participation Clause - employee actively did something (i.e. made a charge, testified, assisted, or participated in) Anti-retaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm.

Prima Facie Case applies to

1. Promotions 2. Demotions 3. Discharges 4. Constructive discharges

Employment Practice

1. To be actionable, an "unlawful employment practice or an "adverse employment practice" must fall within the statutory phrase, "compensation, terms, conditions, or privileges of employment" *2. E.g., terminations, failures to promote, denials of transfer, or refusals to hire - all examples of common employment practices.* 3. Title VII, ADA, and ADEA apply extraterritorially to individuals who are citizens of the U.S. employed by a covered U.S. employer in a foreign country

Religious Claims

1. What is the religion? *Must be a sincerely held belief.* 2. Then ask what the employer can do to accommodate a religious belief. Can the employer reasonably accommodate this request? Employer must engage in interactive process with employee to discuss how he or she can provide the requested accommodation.

Exceptions/Affirmative Defenses to Equal Pay Act

1. a seniority system 2. a merit system 3. a system which measures earnings by quantity or quality of production, or 4. ANY factor other than sex.

Remedies

2 separate but related issues involved in every employment discrimination case: (1) substantive liability - whether a defendant has discriminated against an individual or a class of individuals in violation of the applicable law (2) determination of the appropriate forms of relief to redress the substantive violation

O'Connor v. Consolidated Coin Caterers Corp.

56-year-old was fired and replaced a 40-year-old. Plaintiff brings claim of disparate treatment under Title VII. If the company replaces someone who's protected with someone who is also protected, does it violate the ADEA? An employee can make out a prima facie case of discrimination if replaced by a "substantially younger" worker, even if the replacement is over 40. *(10 years is a substantial age difference; 1 year probably isn't. But circuits are split.)*

Pretext-maybe

5th Circuit- prima facie case combined with sufficient evidence for a reasonable factfinder to reject the employer's evidence of a legitimate, nondiscriminatory reason permits, but does not require the factfinder to find that the employer's decision was based on a discriminatory or unlawful motive

Tangible Employment Action

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. (A bruised ego is not enough).

Ulane v. Eastern Airlines

A former Army pilot worked for Eastern Airlines and got sex reassignment surgery to become a female. When the airline found out about his sex change, they fired him. Court held that Title VII does not protect employees from being discriminated against because they are transsexual. Some jurisdictions reject the approach in Ulane.

Prevailing Party

A party prevails when actual relief on the merits of his or her claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff. Courts have found plaintiffs to be "prevailing parties" when the *plaintiff has earned more than nominal damages or the relief awarded has an important impact on statutory rights.* A "prevailing party" must obtain a judgment or similar form of judicial relief, such as a consent decree.

McDonnell Fourth Factor

A person is not precluded from pursuing a discrimination claim simply because the person who received the contested job was a member of the same protected group. *O'Connor: "The fact that one person in the protected class has lost out to another person in the protected class is irrelevant, so long as he lost because of his status as a protected class member."*

Transsexual

A person who has changed, or is in the process of changing, his or her internal sense of gender identity.

Reinstatement

A reinstatement order in a discharge case (or instatement in a refusal to hire case) is an affirmative injunction directing the defendant to re-employ (or employ) the plaintiff in the job or position that she had or would have had but for the discriminatory conduct of the employer. Reinstatement serves several objectives: (1) it recreates the employment relationship as it would have existed but for unlawful employment discrimination; (2) prevents future economic loss to plaintiff; (3) allows employer to demonstrate good faith compliance with the law to other employees; (4) prevents employers from trying to get rid of employees, at any cost, who assert their rights under laws prohibiting discrimination.

Intersex

A small minority of the population born with a mixture of both male and female biological characteristics.

Union Liability for Discrimination

A union is subject to liability under federal antidiscrimination laws in two capacities: (1) "employer" and (2) "labor organization"

Religious Discrimination Burden Shifting

After P establishes prima facie case, *D "must provide a reasonable accommodation to an employee's religion, unless the employer demonstrates that he is unable to reasonably accommodate to an employee's . . . religious observance or practice without undue hardship on the conduct of the employer's business."* Reasonable accommodation depends on facts of case. *To require an employer to bear more than a de minimis cost is an undue hardship.* De minimis cost entails not only monetary concerns, but also the employer's burden in conducting its business (this is different than in disability cases).

Equal Treatment (Disparate Treatment)

Embraces the notion of "color-blind" or "sex-blind" decision-making. (Advocated by Chief Justice Roberts, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.") An employee's race, color, religion, sex, national origin, age, or disability should not be a factor in any way in an employment decision. Strict application of equal treatment would prohibit consideration of statutorily protected criteria in all circumstances, including affirmative action.

Applicants and Reasonable Accommodation

All applicants must: (1) meet the basic qualifications for the job (i.e., education, training, experience, skills or licenses), and (2) be able to perform "essential functions of the job" with or without reasonable accommodation. Employers must provide "reasonable accommodation" to allow a disabled person to be considered for a job. (E.g., Providing written materials in large print, Braille or audiotape; providing readers or sign language interpreters; providing accessible locations for entire hiring process) BUT these are just modifications to allow them to apply - that doesn't mean that this is the accommodation that would be necessary if they were to get the job.

EPA

Amendment to Fair Labor Standards Act (FLSA) requiring employers to pay equal wages to members of both sexes who perform equal work, requiring equal qualifications, and are performed under similar conditions

Bennett Amendment

Amendment to Title VII, NOT EPA. Different statute of limitations and different amount of damages. Under EPA, you have 2 years to file a claim, and you have right to get 2 years of back pay. It includes the four affirmative defenses to the EPA.

Civil Rights Act of 1991

Amendment to the CRA of 1964 overturning or modifying S. Ct. decisions. Provided for jury trials and compensatory and punitive damages (except punitive damages cannot be collected against a gov't entity)

BFOQ in Age Cases

An action otherwise prohibited under the ADEA is not an unlawful employment practice where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business.

Retaliation

An employee who is punished for seeking administrative or judicial relief, regardless of the merits of his initial claim. Civil Rights Act of 1964 anti-retaliation provision forbids an employer from discriminating against an employee or job applicant because that individual opposed any practice made unlawful by Title VII or made a charge, testified, assisted, or participated in a Title VII proceeding or investigation. Anti-discrimination standard under Title VII is a lower standard of discrimination than under Retaliation clause. *Can also claim retaliation under § 1981.*

Religious Discrimination Notes

An employer can be found to have discriminated because of religion if it fails to hire a person because he or she wore a headscarf in violation of its "look policy" even if the applicant did not ask for an accommodation. An applicant only need show his or her need for an accommodation was a motivating factor in the employer's decision, not that the employer had knowledge of the need for accommodation. It is not enough that an employer's policy is neutral, applying equally to religious and non-religious practice, because Title VII gives religion favored treatment by affirmatively requiring accommodation of religious practice.

What is a reasonable accommodation?

Any change in work environment or way job is usually performed that enables a person to perform the essential functions of the position. The object is for us to find a way for the employee to stay in his or her current position. If there is more than one choice of accommodation - we should consider employee's preference - but we can choose the one that is less expensive and easier to provide. We can choose to provide accommodation that requires employee to remain on job even though employee requested "leave" as accommodation.

Robinson v. Shell Oil Co.

Are former employees protected against retaliation? Yes, Robinson v. Shell Oil Co. SCOTUS held that although the language of §704 is ambiguous, former employees are protected from retaliatory conduct.

City of Los Angeles Dept. of Water and Power v. Manhart

As a class, women live longer than men. For this reason, the L.A. Department of Water and Power required its female employees to make larger contributions to its pension fund than its male employees. Does that practice discriminate against individual female employees because of their sex in violation of §703(a)(1) of the CRA of 1964? *Yes; it is now well-recognized that employment decisions cannot be predicated on mere "stereotyped" impressions about the characteristics of males or females.*

Zone of Interest

Bars a lawsuit if the plaintiff's interests are only tenuously related to, or inconsistent with, the purposes of the relevant statute. Not a hard-and-fast rule, depends on the context of the case.

Lanning II

Because SEPTA produced enough evidence to show that the fitness requirement measures the minimum qualifications necessary for successful performance, the court affirmed the judgment in favor of SEPTA to keep the fitness test. This case provides the most comprehensive analysis of the business necessity defense after the passage of the CRA.

What is a major life activity?

Major life activities include almost ANY life activity (e.g., speaking, walking, breathing, sleeping, learning, communicating, immune system, digestive system, reproduction, etc.)

Price Waterhouse in CRA 1991

CRA of 1991 codified a new evidentiary rule for mixed-motive cases arising under Title VII. The Act provides that "an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." The CRA of 1991 also provides that, if a plaintiff proves a violation, the employer has a limited affirmative defense that does not absolve it of liability but limits remedies available to the plaintiff to declaratory and certain forms of injunctive relief. Stresses that *stereotyping itself is not actionable conduct. It can be evidence that gender played a part in an employment decision.*

Punitive Damages

CRA of 1991: Punitive damages if the *plaintiff proves that the defendant engaged in an unlawful employment practice with malice or with reckless indifference to the federally protected rights of the plaintiff* DOES NOT apply to governmental entity or political subdivision! Must be reasonable based on D's net worth. Factors in determining the amount of punitive damages: (i) Nature & severity of the discriminatory conduct (ii) Duration & frequency of the conduct (iii) Financial status of employer *Kolstad v. Amer. Dental Assoc.: leading case on standard for award of punitive damages under Title VII. Kolstad expressly requires a finding of vicarious liability to impute punitive damages to an employer.*

The Legitimate Nondiscriminatory Reason Defense

Can be a good reason, bad reason, or no reason at all - just can't be discriminatory. Obligation on the employer to introduce evidence of a "legitimate, nondiscriminatory reason" to rebut a plaintiff's prima facie case in circumstantial evidence cases.

Disparate Impact in Age Cases

Can bring disparate impact claim under ADEA but it is much narrower!

Disparate Impact Under CRA 1991

Clarified the disparate impact theory and specified the analytical framework as follows: (k) Burden of proof in disparate impact cases: (1)(A) An unlawful employment practice based on disparate impact is established under this subchapter only if - (i) a complaining *party demonstrates that a respondent uses a particular employment practice that causes a disparate impact* on the basis of race, color, religion, sex, or national origin *and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or,* (ii) the complaining party makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the *respondent refuses to adopt such alternative employment practice*

Back Pay

Compensate victim for economic losses they have suffered from *date of occurrence of the discriminatory act to date of entry of judgment on liability or until plaintiff finds comparable employment.* Elements used to compute back pay include, but not limited to: wages, salary, bonuses, commissions, raises, fringe benefits (e.g. Sick pay, vacation pay, pension benefits, health benefits, stock purchase benefits, bonuses). *Cannot extend back more than 2 years prior to filing a charge with EEOC.* *Back pay may not be awarded in mixed-motive cases* when the defendant carries its burden of proof that it would have made the same decision despite the discrimination. Title VII and ADA impose duty to mitigate damages; failure to mitigate is an affirmative defense on which employer bears both the burden of production of evidence and burden of persuasion. Plaintiff is required only to try to find a *"substantially equivalent"* position *or use "reasonable diligence" to try to find a job* that is same or substantially equivalent in responsibilities.

Compensatory and Punitive Damages Caps

Compensatory and punitive damages subjected to the following caps: 1. Employers with more than 14 but fewer than 101 employees: $50,000 2. More than 100 but fewer than 201: $100,000 3. More than 200 but fewer than 501: $200,000 4. More than 500: $300,000 Juries are not to be informed of the caps, but a court must reduce the amounts awarded to compensatory and punitive damages if the jury's award exceeds the caps. Courts hold that caps apply to the aggregate of all claims brought by a single plaintiff and not to each individual claim on which the plaintiff prevails. The total of both compensatory and punitive damages cannot exceed the caps for each plaintiff. *Caps are not applicable to claims brought under § 1981.*

Honest Belief Defense

Courts agree that an employer's good-faith, mistaken belief in the correctness of its employment decision is not the equivalent of pretext. Courts only require that an employer honestly believed its reasons, even if its reason is foolish or trivial or even baseless.

Drug and Alcohol Use

Current users of illegal drugs or users of drugs with no prescription - NOT protected. Current user of alcohol - not automatically denied (might be rehabilitated and alcohol is legal). BUT use or under influence of alcohol at work? Not protected. If "rehabilitated" or in the process of completing a rehab program -they are considered disabled and may be protected under ADA.

Disparate Treatment and Disparate Impact under ADA

Definition of discrimination under the ADA includes *both disparate treatment and disparate impact.* It places an affirmative obligation on the covered entity to make a reasonable accommodation.

Rehabilitation Act of 1973

Designed to expand employment opportunities in the public and private sectors for individuals with disabilities. *§ 501 covers all departments and agencies of the federal government and imposes upon them the obligation to develop and implement affirmative action* plans for the hiring, placement, and advancement of individuals with disabilities. *§ 503 covers entities that contract with federal departments or its agencies to provide goods and services of more than $10,000.* It also requires federal contractors to take affirmative action to employ and promote individuals with disabilities. Both §501 and §503 have been interpreted to prohibit discrimination too. The Rehab Act originally used the term "handicap," but Congress amended the Act in 1992 to substitute the term "disability" for "handicap." Also used the term "individual with a disability."

Desert Palace v. Costa

Direct evidence is NOT required in a mixed-motive case. *In order to obtain an instruction under mixed-motive, 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. Can have direct or circumstantial evidence.* Defendant can, of course, limit plaintiff's remedy to injunctive relief and attorney's fees if it can show that because of some other legitimate reason, the outcome would probably be the same.

EEOC v. Abercrombie & Fitch

Employee at Abercrombie wanted to wear conservative clothing for religious beliefs, Abercrombie attempted to accommodate, employee still was not satisfied with accommodations. Title VII makes it unlawful "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's religion." The statute broadly defines religion as, "all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's . . . religious observance or practice without undue hardship on the conduct of the employer's business.

Diaz v. Pan American World Airways

District court concluded that being female was a BFOQ for the position of airline attendant because it found that women were better than men at "providing reassurance to anxious passengers." The Fifth Circuit reversed, ruling that ministering to the psychological needs of passengers was "tangential" to the airline's "primary function" of safely transporting passengers.

Wilson v. Southwest Airlines

District court in Texas held that the argument made by the airline that hiring only women as flight attendants was a BFOQ to keep the airline financially solvent (based on its advertising of its flights as "Love" flights) to appeal to male business travelers failed. The primary business of the airline was providing safe transportation. *Having female flight attendants because the customers preferred this did not go to the essence of the employer's business and was, thus, not a legitimate BFOQ.*

Exceptions When Filing Lawsuit: Age Discrimination

Don't need a Notice of Right to Sue to file in court. You can file any time after 60 days have passed from the day the charge is filed (but no later than 90 days after you receive notice that EEOC investigation is concluded).

Obergefell v. Hodges

Due Process Clause of the 14th amendment guarantees same-sex couples the right to marry and that state laws refusing to license or recognize same-sex marriages are unconstitutional.

Establishment Requirement under EPA

EPA construes broadly the term "establishment". Thus, where the employer maintains centralized control and administration of separate job sites, it will generally be deemed a single establishment. Ex: all schools in a school district are a single establishment. Courts generally look at the entire enterprise.

Equal Pay Act

EPA was passed in 1963 as an amendment to the Fair Labor Standards Act. FLSA was passed to accomplish goals of eliminating child labor and establishing a minimum wage. *Bennet Amendment (which is different than the EPA): amendment to Title VII that addresses compensation on the job. EPA was passed to get equal pay for men and women.* Equal work on jobs the performance of which requires equal skills.

ADEA and ERISA

ERISA is the primary law that governs employee benefits, including private pension plans and fringe benefits. ERISA makes it illegal for employer to fire employee to avoid paying pension plans. ERISA does not require employers to provide fringe benefits nor does it specify any level of benefits that must be granted even if the employers chooses not to offer them. What ERISA does is to establish minimum standards to protect employees from breaches of benefit promises made by the employer.

Statutory Provisions

Each of the federal statutes has a specific provision on relief. *Title VII: provides that upon a finding of unlawful discrimination, a "court may enjoin the defendant from engaging in the unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay . . . or any other equitable relief as the court deems appropriate."* CRA of 1991: now makes *compensatory and punitive damages available under Title VII and the ADA, but only in disparate treatment cases not involving mixed-motive claims.* The CRA of 1991 places *caps on amounts* that can be awarded as compensatory and punitive damage, depending upon the size of the employer's workforce. The CRA of 1991 also makes *jury trials available.*

Former Employees

Employee under Title VII covers former employee who claims that his former employer retaliated against him.

Constructive Discharge

Employer engages in unlawful employment discrimination when an employee involuntarily resigns in order to escape intolerable working conditions that she was subjected to because of her race, sex, national origin, or religion. Objective inquiry: *did working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign?*

Family and Medical Leave Act of 1993

Entitles eligible employees to take up 12 weeks of unpaid leave for medical reasons or to care for newborn child or family member

2 Theories of Equality

Equal treatment (disparate treatment) and equal opportunity (disparate impact)

Thompson v. North American Stainless

Eric Thompson (plaintiff) and his fiancée, Miriam Regalado, were both employed by North American Stainless (NAS) (defendant). NAS was notified by the EEOC that Regalado had filed a claim alleging sex discrimination. Three weeks later, NAS fired Thompson. Thompson subsequently filed an EEOC claim and later sued NAS, alleging that NAS fired him in retaliation for Regalado's EEOC charge. (1) Did NAS's firing of Thompson constitute unlawful retaliation? (2) Can a party sue an employer for a third-party reprisal under Title VII if the party falls within the zone of interests that Title VII intended to protect? (1) Yes, it was unlawful retaliation. (2) Yes, *Thompson falls within the zone of interests sought to be protected from Title VII - he is a person aggrieved with standing to sue*

Reasonable Number of Hours

Excessive, redundant, or otherwise unnecessary hours should be excluded. Time spent in administrative proceedings before EEOC are compensable because exhaustion of administrative procedures is required. Reasonable hours also include time spent by law clerks and paralegals even though their time is compensated at lower rate. Some courts have held that fees will be denied to a prevailing party if contemporaneous time records are not kept.

Hazen Paper Co. v. Biggins

Fired two weeks before his 10-year pension vests. Was the employee fired because of age or was it about something else? And if was about something else, was it really about age? Court concluded that he was not fired because of his age, but rather it was because the employer did not want to give him his pension benefits. This is true even though there is a correlation between age and pension. Mere correlation with age is NOT a violation of the ADEA.

Ricci v. DeStefano

Firefighters had to take a test to determine promotions. The examination results showed that white candidates outperformed minority candidates. The City voted to throw out the test results, and certain white and Hispanic firefighters who would have been promoted based on their good test results sued the City for violations of Title VII and the Equal Protection Clause. *Race-based action in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute.* The City's action in discarding the tests was a violation of Title VII. All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race - without some other justification, this express, race-based decision-making violates Title VII. We consider whether the purpose to avoid disparate impact liability excuses what otherwise would be prohibited disparate treatment discrimination *Rejecting the results of a test based solely on the disparate racial impact of the test was no defense to plaintiff's disparate treatment claims.*

McDonnell Douglas Step 1

First, Plaintiff must show a *prima facie case of racial discrimination:* (1) that he belongs to a racial minority (or any other *protected class*) (2) that he *applied and was qualified* for a job for which the employer was seeking applicants (3) that, despite his qualifications, he was *rejected* (4) and that, after his rejection, the *position remained open and the employer continued to seek applicants* from persons of complainant's qualifications As a general rule, the failure of a plaintiff to apply formally for a job is fatal to establishing a prima facie case of discriminatory refusal to hire

Can employer ask if applicant has disability?

Generally, the employer may not ask questions about the disability either because it is obvious or because the applicant voluntarily disclosed a hidden disability. (e.g., can't ask how someone lost their leg). But if it is reasonable to question whether the disability might pose difficulties in performing specific job tasks, then employer may ask: (i) whether applicant would need reasonable accommodation in order to perform task, and (ii) what accommodation is needed.

Civil Rights Act of 1866

Guaranteed all US citizens the same property and contract rights previously afforded only white citizens. These early efforts were halted by Supreme Court decisions so as to render them meaningless. Most famous was Plessy v. Ferguson (1896). Fifty-four years later Brown v. Board of Educ. (1954) rejected "separate but equal doctrine." This decision called public attention to *racial inequalities* and galvanized civil rights leaders into action.

Harris v. Forklift Systems

Harris worked as a manager at Forklift Systems, an equipment rental company, until she quit because of the repeated unwanted sexual innuendos of her boss (the president of the company). She sued. The company defended by saying that the conduct in question did not seriously affect her psychological well-being or lead her to suffer injury. Whether psychological injury is required to prove hostile-environment discrimination. *The conduct does not have to be psychologically injurious. Not necessary to have expert testimony, plaintiff's own testimony may be sufficient for compensatory damages.*

Huber v. Wal-Mart

Huber sought reasonable accommodation in the form of reassignment to a vacant router position, which was an equivalent position. Instead, pursuant to its policy of hiring the most qualified applicant for the position, Wal-Mart required that she apply and compete for the router position with other applicants. She didn't get the job. Does the ADA require an employer to give automatic preference to a qualified, disabled employee seeking reassignment over better-qualified applicants? *No, the ADA is not an "affirmative action" or "mandatory preference" statute; it does not require an employer to reassign a qualified disabled employee to a vacant position when such a reassignment would violate a legitimate nondiscriminatory policy of the employer to hire the most qualified candidate.*

Age Discrimination Burden Shifting

If plaintiff shows PFC, then *burden shifts to employer to present evidence of a legitimate, nondiscriminatory reason for the adverse action taken.* If employer carries its burden, the burdens of *production and persuasion return to the plaintiff to produce sufficient evidence from which a jury could find that an employer had intentionally discriminated against the plaintiff in violation of ADEA.*

U.S. Airways v. Barnett

Injured back in cargo-handling job. Transferred to mailroom. 2 employees senior to him intended to bid for the mailroom position. He asked company to accommodate his disability by making an exception that would allow him to remain in the position but company did not. Whether the ADA required an employer to reassign a disabled employee to a position as a reasonable accommodation even though another employee is entitled to hold the position under the employer's bona fide and established seniority system. No, *absent special circumstances, an employer is not required under the ADA to offer accommodations to disabled employees that violate seniority system rules.*

Prejudgment Interest

Intended to compensate plaintiff for loss of opportunity to invest wages. Trial courts have discretion to award prejudgment interest as part of *back pay in Title VII lawsuits against private employers, but not against a governmental employer.*

Intersectionality

Intersectionality theory posits that individuals have multiple identities that are not addressed by legal doctrines based solely on a single identity or status (e.g., black women). Several courts have been willing to embrace intersectionality theory in Title VII cases.

Lawrence v. Texas

Intimate sexual conduct between consenting adults is protected by the Due Process, even if it is homosexual in nature. In a 6-3 opinion, the Court held that the Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause. Two consenting adults have a *liberty interest in engaging in private, intimate conduct without government intervention.* SCOTUS said the Texas statute was unconstitutional, violating the Due Process Clause. This decision invalidated 22 states' laws. Cites GA case Bowers, which is essentially the same facts. But SCOTUS ruled against the men in that case.

Defining Similar Working Conditions

Is one person working outdoors and the other inside? The working conditions must be similar to make a comparison

Enhancement to Lodestar

Issue of whether a lodestar amount should be increased because of a contingency or risk-of-loss factor. City of Burlington v. Dague held that contingency enhancement is never appropriate, but some courts have awarded a contingency premium in cases where there is a pendent state law claim. Employment Practices Liability Insurance (EPLI): Insurance policies that are specifically drafted to cover employment discrimination claims

Administrative Exhaustion

It is crucial for a plaintiff to first exhaust all administrative remedies. *Cannot sue under Title VII or the ADA without exhausting administrative remedies before the EEOC.* *The individual must satisfy 2 statutory requirements: (1) Timely file a charge with the EEOC within 180 days and (2) Timely file a complaint in federal court within 90 days of receipt of right-to-sue notice from EEOC*

BFOQ in Religion Cases

It is not unlawful to discriminate based on a protected class where something is a *bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.* Race: You can NEVER use race as a BFOQ. Religion: Classic cases in which the BFOQ applies are those in which a religious institution limits employment to individuals who are members of the religious order (can be decided under either the religious entity exception or BFOQ provision).

BFOQ Defense to Sex Discrimination

It shall not be an unlawful employment practice for an employer to hire and employ employees on the basis of sex where it is a *bona fide occupational qualification reasonably necessary to the normal operation of a particular business.* (i.e., if employer can show that it made its decision on a good-faith belief that it could only hire a man/woman). Dothard v. Rawlinson - court held that using height and weight requirement and not hiring a female as a prison guard was a valid BFOQ. Rationale was based on safety.

Stray Remarks Doctrine

Justice O'Connor's concurrence in Price Waterhouse distinguished "stray remarks" from direct evidence. Comments that do not indicate discriminatory animus are typically classified as *stray remarks*, and they *do not constitute direct evidence of the speaker's state of mind.*

Hively v. Ivy Tech Community College

Lesbian sued Ivy Tech claiming school violating Title VII by discriminating o the basis of sexual orientation. *Workplace discrimination based on sexual harassment is a form of sex discrimination under Title VII.*

Differences in Disparate Treatment and Disparate Impact

Major differences in the 2 theories is that discriminatory intent is required in disparate treatment claim, while intent is not an element in disparate impact claim. *The "ultimate question in every discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination." Reeves v. Sanderson Plumbing Prod. (2000).* Intentional discrimination is an issue of fact to be decided by the factfinder. Pullman-Standard v. Swint (1982). *Plaintiff may prove claim of unlawful discrimination by direct or circumstantial evidence.*

Western Air Lines v. Criswell

Mandatory retirement for airline pilots at age 65. *Two prong test: (1) Employer must prove that the age-related job qualification is "reasonably necessary to the essence of the employer's business" (2) Employer must prove more than that the qualification is "convenient" or "reasonable," but requires the employer to prove that it is "compelled to rely on age as a proxy for the safety-related qualifications."* Must prove factual basis for believing that all or substantially all persons over the age limit would be unable to perform safely and efficiently the duties of the job involved.

Postjudgment Interest

Mandatory under federal law!

Futile Gesture Doctrine

May excuse a plaintiff's failure to apply for a job - ex. If employer announces his policy of discrimination by a "whites only" sign

Mixed-Motive Cases and CRA of 1991

Mixed-motive case is one in which the employer relies upon both a legitimate, nondiscriminatory reason AND an unlawful, discriminatory reason at the moment it makes an adverse employment decision, and both the legitimate and illegitimate reasons are motivating factors in that decision. Mixed-motive framework is *NOT available for claims brought under the Age Discrimination Act.*

Price Waterhouse

Mixed-motive case. Price Waterhouse argued that it would have made the same decision even without the unlawful stereotyping of Hopkins. The Court said it should be given opportunity to provide proof on that point which Hopkins could try to rebut.* When an employer considers both gender and legitimate factors at the same time, then that decision was "because of" sex.* Employer may still be able to prove by a preponderance of the evidence that it would have come to the same decision regarding a particular person even if they considered race, gender, etc. The Supreme Court said Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes. "Gender must be irrelevant to employment decisions."

Motivating Factor under ADEA

Motivating Factor = "Sufficient Reason" (i.e. Price Waterhouse). The "motivating factor" test DOES NOT APPLY to age discrimination claims; and there is no burden of persuasion shifting as to causation in such cases (Gross). *ADEA plaintiff must show "but-for" causation through direct evidence or the McDonnell-Douglas burden shifting analysis.*

What if during the post-offer but pre-employment period it is revealed that the employee has epilepsy or some other disability? Can employer withdraw the offer?

NO! Employer cannot withdraw offer solely because of a disability. *Employer can only withdraw offer if physical reveals that applicant is unable to perform the essential functions of job* (with or without reasonable accommodation) *or* that he/she *poses a "direct threat" - which is a significant risk of causing substantial harm to him/herself or others.*

Is discriminatory intent required to establish prima facie case under the EPA?

NO! Unlike Title VII, EPA does not require proof of discriminatory intent!

Pretext-only

NOT GOOD LAW

Pretext-plus

NOT GOOD LAW! Required some additional evidence that the employer's real reason was motivated by discriminatory intent. The federal courts were initially split on what Hicks meant. Although the pretext-plus standard has now been firmly rejected by SCOTUS, federal courts continue to grapple with the question of the meaning of pretext and whether plaintiffs have offered sufficient evidence to reach a jury.

Enforcement Schemes

No administrative enforcement scheme for claims based on §§ 1981 & 1983. *You don't have to go to the EEOC first, they are filed directly in the appropriate state or federal court.*

Provisions of Equal Pay Act

No employer having employees subject to any provisions of the Act shall discriminate within any establishment in which such employees are employed, between *employees on the basis of sex* by paying wages to employees in such establishment at a *rate less than the rate* at which he pays wages to employees of the opposite sex in such establishment for *equal work on jobs the performance of which requires equal skill*, effort, and responsibility, and which are performed under *similar working conditions.*

Sperling v. Hoffmann-La Roche, Inc.

Not a violation of ADEA to fire someone due to a disability that was "associated" with age. Not a violation to not hire someone because they are over-qualified and/or over-experienced. Termination decision based on employee's level of compensation does not violate ADEA. Reliance on the existence of "ample retirement benefits" in firing plaintiff is not a violation of ADEA. Termination based on the belief that P has limited skills or a limited ability to acquire new skills IS a violation - consideration of factors such as these are also the types of stereotypes the ADEA was intended to eradicate from the employment decision-making process.

Gender Identity Discrimination

Not acknowledged as a form of sex discrimination yet BUT probably will be soon!

McDonnell Douglas Step 2

Once P shows prima facie case, *burden shifts to the employer to articulate some legitimate, nondiscriminatory reason* for the employee's rejection. Nothing in Title VII compels an employer to absolve and rehire one who has engaged in such deliberate, unlawful activity against it.

Who is an employee and why does it matter?

Only "employees" are covered under Title VII. Courts use the "control test" to determine who is an "employee." ADA: employer is not covered unless its workforce includes 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year." (1) Whether an individual is an employee who may invoke the statutory protections afforded to persons claiming unlawful employment discrimination (2) Whether an employer satisfies the 15- or 20-employee threshold for coverage of the relevant antidiscrimination statute

Prima Facie Case of Hostile Work Environment

P must demonstrate: (1) that she belongs to a protected class (2) that she was subjected to unwelcome sexual harassment (3) that the harassment was based on sex (4) that the harassment was sufficiently severe or pervasive to alter the terms & conditions of employment (5) that there is a basis for holding the employer liable for the misconduct

Prima Facie Case Against Employer under EPA

P must establish that: (1) in the same establishment (2) the employer pays different wages to employees of the opposite sex (3) who perform equal work on jobs requiring equal skills (4) and the jobs are performed under similar working conditions

Rehabilitation Act of 1973

Prohibits federal government and contractors from discriminating on the basis of disability

Materially Adverse

P must show that a reasonable employee would have found the challenged action materially adverse, which means it might have dissuaded a reasonable worker from making or supporting a charge of discrimination. Title VII does not set forth a "general civility code for the American workplace." An employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience. "We refer to reactions of a reasonable employee because we believe that the provision's standard for judging harm must be objective."

Civil Rights Act of 1964

Passage of Title VII of Civil Rights Act of 1964 was the major turning point in development of a national policy on discrimination in employment. While the CRA of 1964 is the most comprehensive of the federal statutes that provide individuals with a remedy for unlawful discrimination, the US now has a number of laws, federal executive orders, and regulations prohibiting discrimination in employment because of race, color, sex, religion, age, disability, and national origin.

Equality Act

Pending in Congress. Would amend numerous federal statutes to make discrimination on the basis of sexual orientation and gender identity unlawful in employment and in public accommodations, housing and education, but the law has not been passed. *Currently, there is no federal law that explicitly outlaws employment discrimination on the basis of sexual orientation, although many state and local governments, companies, and universities include sexual orientation, gender identity, and gender expression as protected categories.* The most common form of discrimination against these groups is harassment.

Ansonia Board of Education v. Philbrook

Philbrook claimed school board's leave policy amounted to religious discrimination under Title VII. Whether the employer's efforts to adjust respondent's work schedule in light of his belief fulfill its obligation under Title VII to "reasonably accommodate to an employee's religious observance or practice without undue hardship on the conduct of the employer's business." Title VII does not oblige an employer to accept any reasonable accommodation proposed by an employee that does not cause "undue hardship" to the employer's business and does not require employers to accommodate religious observances "at all costs." Lower courts failed to determine whether the collective-bargaining agreements as they were actually administered effectively permitted employees to use personal-business days for any purpose other than religious ones.

Establishing Prima Facie Case of Religious Discrimination

Plaintiff must show that: (1) Employee had a bona fide religious belief that conflicted with an employment requirement; (2) that she informed employer of this belief; and that (3) she was disciplined for failing to comply with the conflicting requirement of employment.

Age Discrimination Prima Facie Case

Plaintiff must show that: (1) He is within the *age group protected* under the ADEA (2) He suffered an *adverse employment action* or disposition (3) He was *qualified for the position* either lost or not gained (4) A *person younger than the plaintiff was selected* for the position over the plaintiff

Defining Unequal Pay

Plaintiff only has to prove an unequal rate of pay, not unequal total pay

80% Rule aka Four-Fifths Rule

Plaintiffs may establish adverse impact by showing that employees in the protected class are hired, or pass a test, at a rate that is below 80% of the rate of the most successful group. Although more rigorous statistical proof is typically offered in cases today, the 80% rule remains a useful benchmark for disparate impact cases.

Lodestar Method

Predominant method for calculating a reasonable fee. Hensley v. Eckerhart: *(# hours reasonably worked) x (hourly rate).* The party seeking award of fees should submit evidence supporting the hours worked and rates claimed. Where documentation of hours is adequate, district court may reduce the award accordingly.

EEOC

Primary enforcement agency for: 1. Title VII, 2. ADEA, 3. ADA, and 4. Equal Pay Act EEOC has guidelines but court gives no deference to EEOC decisions.

ADA

Prohibits discrimination against qualified individuals on the basis of a disability

Immigration Reform and Control Act of 1986

Prohibits discrimination in employment on basis of national origin

Pregnancy Discrimination Act of 1968

Prohibits discrimination of a woman based on her pregnancy

Title VII of Civil Rights Act of 1964

Prohibits discrimination on the basis of: race, color, religion, national origin, and sex

Lanning I

SEPTA developed a physical fitness test for its police officers requiring them to be able to run 1.5 miles in 12 minutes. Research showed that the fitness requirement had a disparate impact on women. SEPTA conceded that the 1.5-mile run has a disparate impact on women. Standard is whether the 1.5-mile run is "job related for the position in question and consistent with business necessity" under the Civil Rights Act of 1991. *Under the CRA of 1991, a discriminatory cutoff score on an entry level employment examination must be shown to measure the minimum qualifications necessary for successful performance of the job in question in order to survive a disparate impact challenge. A discriminatory cutoff score is impermissible unless shown to measure the minimum qualifications necessary for successful performance of the job in question.* Only by requiring employers to demonstrate that their discriminatory cutoff score measures the minimum qualifications necessary for successful performance of the job in question can we be certain to eliminate the use of excessive cutoff scores that have a disparate impact on minorities as a method of imposing unnecessary barriers to employment opportunities. Business necessity standard adopted by the Act must be interpreted in accordance with the standards articulated in Griggs.

Race under Title VII and Section 1981

Santa Fe case: Whites as well as blacks are protected from racial discrimination. St. Francis College case: U.S. citizens can bring race discrimination claims under Section 1981. Bennun v. Rutgers State Univ. case: "We think that unlawful discrimination must be based on the plaintiff's objective appearance to others, not his subjective feeling about his own ethnicity. Discrimination stems from a reliance on immaterial outward appearances that stereotype an individual with imagined, usually undesirable, characteristics thought to be common to members of the group that shares these superficial traits."

Cat's Paw Theory

Seeking to hold employer liable for the animus of a supervisor who was not charged with making the ultimate employment decision

Sex vs. Gender

Sex = two sexes based on anatomical, biological characteristics (male and female). Gender = social construct; follows from sex and refers to external behavior, including dress, grooming, and mannerisms that are viewed as being socially or culturally linked either to men or to women.

"Sex-Plus" Claims: Phillips v. Martin Marietta Corp.

Sex-plus claims involve allegations that sex is combined with some non-protected characteristic, such as weight or marital or parental status (like asking a female job candidate if they have children and then ask what they plan to do for childcare during work). *In Phillips, the Court held that an employer's rule that prohibited mothers of preschool-aged children from holding certain positions was a prima facie violation of Title VII.* Because mothers of young children were treated differently from fathers of young children, the company policy discriminated on the basis of sex.

Baldwin v. Foxx

Sexual orientation discrimination is a form of sex discrimination under Title VII

Smith v. City of Salem

Smith was a lieutenant in the Salem Fire Dept. He was a male biologically and by birth, but he was diagnosed with Gender Identity Disorder (GID) and began expressing a more feminine appearance. Smith's coworkers commented on his transition and told Smith that he was not masculine enough. Smith's supervisors and other high-level municipal officers (defendants) became aware of Smith's transition and allegedly conspired to terminate Smith's employment. 6th Circuit held that Smith was discriminated against on the basis of sex stereotyping similar to that in Price Waterhouse. Court found that Smith successfully stated claims for relief under Title VII. *Title VII prohibits sex stereotyping of transsexuals by employers.*

Similarly Situated Comparators

Some courts have added an extra element of showing a prima facie case. These courts require that plaintiff establish that a "similarly situated person outside the protected class was treated better." 5th circuit requires someone "nearly identical."

Collateral Source Rule

Some courts hold that a defendant is entitled to a set-off for income the plaintiff receives from collateral sources such as social security, welfare benefits, unemployment compensation, and disability income. Others do not.

Discrimination Because of Sex

Sparse legislative history, but part of Title VII

Evidence of Pretext

St. Mary's Honor Center v. Hicks, involved a "direct" attack on defendant's articulated reason, which was plaintiff's alleged "failure to investigate a fight" between inmates. Reasons D gave were not the real reason for P's demotion and discharge. P can show that D was lying about justification, so does P win? If P can show that D is lying about alleged justification, such evidence does not ALONE compel the court to award P a directed verdict/summary judgment. But, such evidence can be used to infer discrimination. Supreme Court reversed the 5th circuit's requirement of pretext-plus.

Staub v. Proctor Hospital

Staub worked for Proctor Hospital. He was allegedly fired due to his supervisors' hostility to his military reserve obligations. His supervisors influenced the VP (Buck) of the hospital to fire Staub. Even though Buck did not know of the unlawful animus when she fired Staub, the employer was still liable under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). *If a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable.*

Better Qualified Candidate Defense

Suppose an employer's rebuttal to a prima facie case is that P was denied employment opportunity because it was awarded to a better qualified candidate. *Even when P's qualifications are objectively superior to another candidate's, courts have been reluctant to allow a case to proceed solely based on the fact that P was the better qualified candidate.* The 10th circuit has stated: "minor differences between a P's qualifications and those of a successful applicant are not sufficient to show pretext. To show pretext, the disparity in qualifications must be overwhelming."

Ledbetter v. Goodyear

Supreme Court held that plaintiff failed to file claims of discrimination on all her previous pay denials in a timely manner, and she could obtain relief only on those falling within the requisite time period. There was public protest against the Supreme Court's decision. Congress quickly passed the Lilly Ledbetter Fair Pay Act, which repudiated the Court's decision. It was the first bill President Obama signed into law. The Act rejected the Court's decision and amended Title VII so that an unlawful employment practice occurs, with respect to compensation, when a discriminatory compensation decision or practice is adopted, including each time wages are paid.

Trans World Airlines v. Hardison

TWA hired Hardison to work as a clerk in the Stores Department in the Kansas City maintenance base. Hardison was eventually discharged for refusing to report to work on Saturdays and sued TWA for religious discrimination. Supreme Court stated TWA made reasonable efforts to accommodate and that each of the Court of Appeals' suggested alternatives would have been an undue hardship within the meaning of the statute as construed by the EEOC guidelines. *Holding in favor of TWA, the Court said that absent a discriminatory purpose, the operation of a seniority system cannot be an unlawful employment practice even if it does have some discriminatory consequences.* TWA was not required by Title VII to carve out a special exception to its seniority system in order to help Hardison meet his religious obligations.

Quid Pro Quo Sexual Harassment

Tangible employer action. "This or that": whenever an individual explicitly or implicitly conditions a job, a job benefit, or the absence of a job detriment upon an employee's acceptance of sexual conduct. The person requesting the sexual conduct is someone who is either a supervisor or someone who has authority over the person being harassed.

Temporary Employers and Employees

Temporary employers and employees are typically considered to be employees of both the staffing agency and the company that contracted with the agency. This "joint employer doctrine" has been adopted by the 4th Circuit, who holds both the primary employer and the staffing firm liable for a harassment claim.

Frazee v. Illinois Dept. Employment Security

The Court rejected the view that "to claim the protection of the Free Exercise Clause, one must be responding to the commands of a particular religious organization"

General Electric Co. v. Gilbert

The Court upheld a short-term disability plan that was otherwise comprehensive, but that excluded pregnancy-related conditions from its coverage. The Court concluded that *because not all women are pregnant, discrimination against pregnancy is not sex discrimination.* Moreover, the plan treated the sexes equally by offering identical coverage to men and women. Shortly after this case, Congress began considering an amendment to Title VII that was passed as the Pregnancy Discrimination Act in 1978.

Pregnancy Discrimination Act 1978

The PDA is an amendment to Title VII to ensure that "sex discrimination" is understood to include discrimination on the basis of pregnancy. *An employer must make the same accommodations to a pregnant woman that it would make for any other employee with a short term disability.*

Equitable Tolling

The Supreme Court has stated that equitable tolling may be justified where: 1. Notice from EEOC is inadequate 2. A motion for appointment of counsel is pending 3. The court has led the plaintiff to believe all statutory requirements for bringing suit have been satisfied or 4. The defendant's misconduct has "lulled the plaintiff into inaction" Doctrine of laches may bar suit if an aggrieved party unreasonably delays requesting the right to sue notice or other reasons

CRA 1991 Amended after Wards Cove

The Wards Cove case was highly controversial because it was seen as severely restricting the scope of the disparate impact theory. Almost immediately after the decision, Congress moved to enact legislation to overturn or modify the case. The initial legislation, known as the Civil Rights Act of 1990, was vetoed by President George H.W. Bush. The next year, Congress passed the Civil Rights Act of 1991, which significantly altered the Court's decision in Ward's Cove.

International Union v. Johnson Controls

The company produced batteries and had a fetal protection policy that excluded a fertile female employee from jobs working around the batteries because of the health risks to a fetus carried by a female employee. The jobs that required working around batteries paid a lot more than the other jobs. Women sued, contending that the fetal-protection policy constituted sex discrimination in violation of Title VII. May an employer exclude certain fertile female employee from certain jobs because of its concern for the health of the fetus the woman might conceive? *NOT A VALID BFOQ!*

Cost Justification Defense

The defense that a high-salaried employee who is protected under the ADEA was discharged as a cost-saving measure. Not a violation of ADEA!!!

Paramour Favoritism

The federal courts have consistently held that *employment preferences for lovers are NOT unlawful discrimination, but instead are forms of favoritism that fall within the scope of employer prerogative.* Some employers have anti-fraternization policies. Sometimes these policies give rise to a first amendment claim of unlawful interference with a person's right of association. *NOT a violation of Title VII to give preferential treatment to your lover BUT if it's so widespread then it could be actionable!* (Supervisor sleeping with multiple subordinates who all get promotions, but one woman who does not sleep with supervisor does not get promotion).

Exceptions When Filing Lawsuit: Equal Pay Act

You don't have to file a charge OR obtain Notice of Right to Sue before filing. You can go directly to court, provided you file the suit within two years from the day the discrimination took place (3 years if the discrimination was willful). Title VII also makes it illegal to discriminate based on sex in the payment of wages and benefits, so there may be advantages to also filing under Title VII BUT for *Title VII claim you must have filed a charge with EEOC and received Right to Sue.*

ADA of 1990

The most comprehensive law in providing civil rights protection to individuals with disabilities, similar to protection against discrimination because of race, color, sex, national origin, and religion provided by Title VII. ADA divided into five titles. Title I - covers some employers, employment agencies, and labor organizations and incorporates same administrative exhaustion requirements and remedies as Title VII. Title II - extends prohibitions to state and local governments or agencies, regardless of whether these entities receive federal funding. Also covers public transportation. The ADA of 1990, as amended, broadly prohibits discrimination in employment on the basis of disability. *Prohibits discrimination* in employment against a *qualified individual* with a *disability;* and employers must make *reasonable accommodation* to the *known* physical or mental limitations, *unless* doing so would create an *undue hardship* on the operation of the business.

Burlington Northern & Santa Fe Railway v. White

The only woman working operating a forklift. She received comments about her being a woman and was then replaced as a forklift operator for a "more senior man." Burlington did not question that the motivation for the acts was retaliatory, but it questioned the statutory significance of the harm these acts caused. Issue was whether Title VII's anti-retaliation provision forbids only those employer actions and resulting harms that are related to employment or the workplace. *Retaliation claims are not limited to adverse employment actions, but must be actions harmful such that they could dissuade reasonable workers form making or supporting a charge of discrimination. An employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work. It does so by prohibiting employer actions that are likely to deter victims of discrimination from complaining to the EEOC.*

Opposite-Sex Comparator

The plaintiff must identify an opposite-sex comparator. Ps cannot use a fictional opposite-sex comparator. You can use either a predecessor or a successor as a comparator, or a former employee.

Constructive Discharge for Harassment

The work environment has become so awful that the person has no other choice than to quit. The *conduct must be sufficiently severe OR pervasive to alter the conditions of the victim's employment and create an abusive working environment (doesn't have to be both).* If there was one instance that was severe enough, then only that one incident is enough for a claim. If it is less severe, there must be some sort of continuous, pervasive conduct.

McDonnell Douglas Step 3

Then, *burden shifts BACK to plaintiff to show that the employer's stated reason for the rejection was in fact pretext.* Plaintiff must produce evidence from which a reasonable inference can be drawn that the defendant's offered reason was not the real reason for his rejection, but that discrimination was. Plaintiff must also persuade the fact finder to draw that inference by a *preponderance of the evidence.* *St. Mary's: Proof that defendant is lying does not entitle plaintiff to summary judgment.* *Reeves: If lying is only proof, defendant not entitled to summary judgment.* E.g., facts as to employer's treatment of employee during his prior term of employment, employer's reaction to employee's legitimate civil rights activities, employer's general policy and practice with respect to minority employment.

Young v. United Parcel Services

There is a genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from Young's. In other words, Young created a genuine dispute of material fact as to the fourth prong of the McDonnell Douglas analysis.

Presumption for Attorney's Fees

There is a strong, but rebuttable, presumption in favor of awards of attorney's fees for prevailing plaintiffs and a corresponding rebuttable presumption against awards of attorney's fees for prevailing defendants. *A plaintiff will normally not be assessed defendant's attorney's fees unless a court finds that the plaintiff's claim was frivolous, unreasonable, or groundless, or the plaintiff continued to litigate after it clearly became so.* If a plaintiff is found to have brought a case in bad faith, there will be an even stronger basis for charging him or her with defendant's attorney fees.

Meaning of Color

Title VII also prohibits discrimination on the basis of "color" - e.g., light-skinned black person vs. dark-skinned black person.

Smith v. City of Jackson, MS

Younger police officers are given higher bump in pay and the older officers say they've been discriminated against based on their age. Whether you can bring a disparate-impact theory under the ADEA. Yes but it is a weaker, narrower version. ADEA was amended with Title VII in ADEA. Reasonable factor other than age defense. Claims based on disparate impact can be asserted under the ADEA although the standard of justification requires only reasonableness.

Religious Entity Exceptions

Title VII provides two broad exemptions for religious employers: (1) Non-profit activities of religious employers may discriminate on the basis of religion in making employment decisions. (2) Ministerial exception: Church or religious school can refuse to hire priest or teacher who does not comport with its religious teachings. (e.g., Jewish synagogue could refuse to hire Baptist preacher as its rabbi.)

Title VII and the Individual

Title VII's focus on the individual is unambiguous. The statue makes it unlawful "to discriminate against any individual" with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. It *precludes treatment of individuals as simply components of a racial, religious, sexual, or national class.*

Who is an employer?

Title VII: 15 employees or more ADEA: 20 employees or more Section 1981: NO MINIMUM NUMBER OF EMPLOYEES REQUIRED! Supreme Court has adopted the "payroll" method, which relies on "whether the employer has an employment relationship with the individual on the day in question"

Gender Identity Disorder

Transsexual persons who experience severe discomfort from the mismatch between their biological sex and their gender identity. This is a mental disorder recognized by the American Psychiatric Association.

Progression of Sexual Harassment

Ulane v. Eastern Airlines held that Title VII's prohibition against sex discrimination "implies that it is unlawful to discriminate against women because they are women and against men because they are men." From this truism, we deduced that "Congress had nothing more than the traditional notion of 'sex' in mind when it voted to outlaw sex discrimination". Price Waterhouse held that the practice of gender stereotyping falls within Title VII's prohibition against sex discrimination, and Oncale clarified that it makes no difference if the sex of the harasser is (or is not) the same as the sex of the victim.

Ultimate Burden in Retaliation Cases: But-For Causation

University of Texas Southwestern Medical Center v. Nassar: What is the proper standard of causation for Title VII retaliation claims? *The new standard in retaliation cases is "but-for" causation - higher standard. Retaliation under Title VII has the same standard of proof as found in the ADEA. A plaintiff making a retaliation claim must establish that his or her protected activity was a "but-for" cause of the alleged adverse action by the employer.*

Disparate Treatment in Age Cases

Unlike Title VII, the ADEA's text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor. *To establish a disparate treatment claim under the plain language of the ADEA, plaintiff must prove by a preponderance of the evidence that age was the 'but for' cause of the employer's adverse decision.* But-For = "Necessary Reason" (without age, you wouldn't have been fired). 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 P has produced some evidence that age was one motivating factor in that decision.

NOT Employees

Unpaid interns and independent contractors are not employees. A key factor is "the extent of control" that one may exercise over the details of the work of another (control test.)

Meritor Savings Bank v. Vinson

Vinson's supervisor said that she wouldn't be promoted unless she had sex with him. She had sex with him 91 times. But the sex was UNWELCOME, so it constituted sexual harassment. Court first used the terms "quid pro quo" and "hostile work environment" to describe the two categories of sexual harassment actionable under Title VII. *The gravamen of any sexual harassment claim is that the conduct is unwelcome, not whether the victim voluntarily engaged in the conduct.*

Wards Cove Packing v. Atonio

Wards Cove Packing was a salmon cannery in Alaska. All Wards Cove employees were classified into one of two job types: cannery positions or noncannery positions. The cannery workers, considered unskilled laborers, were predominately nonwhite Filipinos and Alaska Natives. Cannery workers were largely hired from local villages surrounding the cannery facilities. Noncannery employees, considered skilled laborers, were mostly white non-locals hired during the winter months from Wards Cove's offices in other states. All noncannery employees were paid more than cannery employees. The issue was with the job-pool. *An imbalance between minority and non-minority employees is not, in and of itself, sufficient to permit an inference of disparate impact. If the absence of minority employees in a given job classification reflects a lack of qualified minorities in the relevant labor pool, a resulting imbalance consisting of fewer minority workers than white workers cannot be considered a disparate impact.*

Religious Claim Factors

When determining religious vs. secular distinction: (1) Shared or individual? (2) Element of a comprehensive system? (3) Structure? (4) Supreme being? (5) Significance of ethical activity?

Religious Discrimination History

When enacted in 1964, Title VII prohibited discrimination on the basis of religion, but imposed no affirmative obligation on employers to accommodate the religious beliefs of their employees. EEOC revised its guidelines in 1967 to require an employer not only to refrain from discrimination, but also to make reasonable accommodations to the religious needs of employees where such accommodations could be made without undue hardship on the conduct of the employer's business. Initially, some employers defended religious discrimination claims by challenging the validity of the 1967 guidelines based on unconstitutionality or were inconsistent with Title VII. Some courts narrowly construed the EEOC guidelines because of concern that compelling employers to accommodate the religious beliefs and practices of all their employees would violate the Establishment Clause of the 1st amendment. In 1972, Congress essentially codified the "reasonable accommodation" and "undue hardship" language originally drafted by EEOC.

Front Pay

When reinstatement is not feasible, court can order an amount to compensate for future lost wages -aka. front pay. *Plaintiffs are not entitled to both front pay and reinstatement. Front pay not awarded in Equal Pay Act or mixed-motive cases.* For EPA, back pay and an injunction to equalize the wages of males and females usually provides adequate relief. Elements used to compute front pay are generally the same as those used in determining back pay: *wages, pension, health and life insurance benefits.*

Prior Salary and Market Demand

Whether an employer can consider a person's prior salary - courts are split. Whether an employer can consider the higher market demand for certain positions - courts are split.

Burlington Industries v. Ellerth

Whether an employer has vicarious liability when a supervisor creates a hostile work environment by making explicit threats to alter a subordinate's terms or conditions of employment, based on sex, but does not fulfill the threat. *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) over the employee.*

Qualification Element

Whether the plaintiff is qualified for the job at issue. Most courts require only that the plaintiff establish that she satisfies the minimum qualifications for the position.

Oncale v. Sundowner Offshore Services

Whether workplace harassment can violate Title VII's prohibition against discrimination because of sex when the harasser and the harassed employee are of the same sex? YES! Nothing in Title VII necessarily bars a claim of discrimination because of sex merely because the plaintiff and defendant are of the same sex. Just must be BECAUSE OF SEX. *Same-sex sexual harassment is actionable under Title VII!!!* Title VII's prohibition of discrimination because of sex protects men as well as women!

Vance v. Ball State University

Who qualifies as a "supervisor" in a workplace harassment claim? *An employer may be vicariously liable for an employee's unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim.* i.e. to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or decision causing a significant change in benefits.

Historical Background

a. Reconstruction-era Congress sought to guarantee the rights of African Americans with constitutional amendments b. 13th Amendment: outlaws slavery c. 14th Amendment: guarantees to all persons the privileges and immunities of United States citizenship, due process of law, and equal protection. Congressional Act of 1870: all persons instead of all citizens. Later codified at 42 U.S.C. § 1981(a). d. 15th Amendment: prohibits both federal and state governments from depriving citizens of the right to vote on account of race, color, or previous condition of servitude