Employment Discrimination

Tangible Constructive Discharge Prima Facie

1. Offending behavior by a supervisor that 2. Adversely and officially changes employment status or situation. Ex: a humiliating demotion, extreme cut in pay, or transfer to a position in which she would face unbearable working conditions. 3. Reasonable person would have left. Strict liability **After Suders some courts require intent by supervisor**

What are the three potential applications of mixed motive results (racial discrimination)

1. Pretext-only 2. Pretext-maybe 3. Pre-text plus

Types of Harassment because of sex

1. Quid Pro Quo: when sexual compliance is exchanged or proposed to be exchanged for an employment opportunity and 2. Hostile work environment: Creating or maintaining a work environment that is offensive, intimidating, or hostile because of a person's sex.

When is the employer liable for supervisor's actions?

1. Super took a tangible action or strict liability 2. Super created a hostile work environment (unless affirmative defense) 3. Quid pro quo strict liability

Constructive Discharge

1. Tangible action making employee quit or 2. Hostile work environment. A termination of employment that Occurs when employee's working conditions are so intolerable that the employee reasonably feels compelled to leave.

Important notes about sexual harassment

1. The key Q for workplace sexual harassment is not the sexualized nature of the conduct, but the SEX-BASED motivation for the conduct. 2. if a supervisor sexually harasses female and male employees, they are not liable for sex discrimination they are an "equal opportunity harasser"

Employer Affirmative Defenses to Constructive discharge

1. employer exercised reasonable care to prevent issue 2. plaintiff unreasonably failed to take advantage of preventive or corrective opportunities

Disparate Treatment Claim. Step 1

1st P must establish a prima facie case of racial discrimination by showing (McDonnel Douglas) a. P was a member of a protected class b. that he a qualified for or met the employers legitimate expectations c. Despite qualifications suffered an adverse employment action or was denied employment d. Position remained open and employer continued to seek applicants. Some circuits require similarly situated comparators

How can P bring action for harassment by customers and 3rd parties?

EEOC says: when the employer knows or should have known of conduct and fails to take immediate and appropriate corrective action

Religion Discrimination Prima Facie

Employee must show: a. She had a bona fide religious belief that conflicted with an employment requirement; and b. That she informed the employer of this belief; and c. That she was disciplined for failing to comply with the conflicting requirements d. ** For applicants: they only need to show that the employer had knowledge of the need for accommodation

Sex-Based Discrimination

Employee treated differently because of sex. Sex= motivating factor this is not "but for" Employer may not take gender into account in making an employment decision except in narrow BFOQ circumstances

When is an employer liable Hostile work environment created by employees

Employer is only liable if he knew or should have known and failed to take reasonable action

When is the employer automatically liable for constructive discharge?

If the plaintiff quits in reasonable response to an employer-sanctioned adverse action officially changing her employment status or situation, for example, a humiliating demotion, extreme cut in pay, or transfer to a position in which she would face unbearable working conditions.

Common-Actor Defense:

It is reasonable to assume that if a person was unbiased at Time A (when he decided to hire plaintiff) he was also unbiased at Time B (when fired plaintiff). This should considered by trier of fact and not at summary judgment (McKinney v. Office of the Sheriff of Whitley County)

Disparate Treatment Claim. Step 2

McDonnel Douglass After prima facie case of discrimination is proven burden shifts: Employer must articulate some legitimate, nondiscriminatory reason for the employment action

Employer defense to sex harassment

"I did not do it" FRE now permit defendants to present evi of alleged victims sexual behavior or sexual predisposition

Constructive Discharge in hostile work environment

(1) The working conditions are so severe and intolerable (2) Unreasonably interferes with status of emplyment (3) a reasonable person in her situation would have been compelled to leave. (eeehh..The employer intended to force the employee to quit). Negligence and agency theory standard for liability. D can assert aff defense

Temporal Proximity

(Clark County School district) as the temporal distance between the protected activity and the adverse employment action increases, the less likely it is that the causal element can be established

What if P incorrectly believes employer is engaging in unlawful behavior?

(Crawford Metro Govt.)P is still protected from the retaliation as long as claim was reasonable

hostile work environment sexual harassment prima facie

Meritor Savings Bank *Negligence standard* Employee must establish 1. He belongs to a protected class 2. He was subjected to UNWELCOME harassment 3. The harassment was based on his membership of a protected class (sex) 4. The harassment was sufficiently severe or pervasive to alter the terms and conditions of employment AND 5. There is a basis for holding the employer liable for the misconduct

Where are courts on grooming standards that differ from men and women?

More courts reject these claims. Two reasons: 1. These policies have on trivial or de minimus impact on employees working conditions 2. Dress and grooming falls outside of the scope of T.VII's objective and inside employer's prerogative .

Quid Pro Quo Sexual Harassment Prima Facie

Nichols v Frank *Strict Liability* Employee must establish 1. That an individual explicitly or implicitly 2. Conditions a job, job benefit, or absence of job detriment 3. Upon an employee's acceptance of sexual conduct

Causal Link

P must establish that his protected activity was the but for cause of the adverse action. P can prove this by: a. Some circuits hold temporal proximity(up to 3 weeks) is enough b. others require T.P. and some other EVI of retaliation even to survive SJ

D defense in mixed motive case?

P must prove by a preponderance of the evidence that: 1 at the time the adverse action was taken, D had a legitimate reason for taking such action AND 2. that D would have made this same action absent discrimination

What is P's burden of proof standard?

P must prove that it is more likely than not treatment was based on discriminatory intent.

Pretext Maybe

P proves prima facie case plus provides credible evidence for the fact finder to reject D's evidence of legitimate, non discriminatory reasons PERMITS but does not require fact finder to find employer's motive was based on a discriminatory motive. S.C. in Hicks adopted this

Price Waterhouse v. Hopkins

- Met burden of showing that she was qualified and didn't receive the position -Price Waterhouse met the burden that the decision was sex neutral- based on interpersonal skills. -Court first discusses whether Hopkins met step 3 burden of refuting the argument that the decision was based on her lack of interpersonal skills - Argument was based on a sex stereotype said she was "too aggressive"...needed to be more "feminine" -Did the district court err when it required the defendant to establish a mixed motive by clear and convincing evidence? YES

Undue Hardship

--When employer is required to bear more than de minimis costs -- De Minimis costs includes monetary costs and employer's burden in conducting business

Employer Defenses under Title VII

-Bona fide seniority system -Bona fide merit system (quality, quantity, etc.) -[Disparate treatment] Bona fide occupational qualification (BFOQ) 1. Reasonably necessary for effective job performance, and 2. Reasonably necessary for business

How is employer negligence shown?

Prof Oppenheimer: 1. unreasonably failing to instruct employees to refrain from sexual harassment 2. Unreasonably failing to adopt rules, policies, and regulations designed to prevent harassment 3. Unreasonably employing people it know or should know would be involved in sexual harassment 4. Failing to properly supervise employees to prevent harassment from occurring 5. Standing by doing nothing when aware of should be aware that harassment is occurring or 6. Failing to prevent harassment that could have reasonably been prevented

Types of Discrimination prohibited under Title VII

RACE COLOR RELIGION SEX NATIONAL OF ORIGIN

Oncale v. Sundowner Offshore Service, Inc.

Same sex harassment. Joseph Oncale was worker on oil rig with 8-man crew. Subjected to sex-related, humiliating actions by co-workers. Sued under Title VII for sexual harassment. Supreme Court agreed that Title VII bars all forms of discrimination "because of sex." Includes same-sex harassment

Types of Sex Discrimination

Sex stereotyping Gender nonconformity Unequal Burdens

How can you Show Patter or Practice Discrimination

Statistics can be used to help prove patterns and practices of systemic discrimination. They cannot be solely relied upon as evidence. Standard deviation can be used to identify what the number of a certain group of employees should be, plus or minus a certain number, and compare it to what that number actually is. Regression is the second form of statistics we can use o You have multiple variables and you want to isolate one particular variable to see if there's a significant difference

Test of Sincerity (Patrick v. LeFevre)

Subjective test Employer can bring evi. of P's previous actions that are contrary to claimed religion. p can show proof of recent conversion or deepening of faith. Sincerity analysis is necessary to differentiate btwn beliefs that are held as a matter of conscience and those animated by deceptive or fraudulent motives.

Rule for tests, policies, or practices in disparate impact (Albermarle)

Tests that discriminate are impermissible unless shown by professionally acceptable methods to be predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are evaluated

What happens if P has direct evi. in mixed motives case?

The case skips the McDonnel Douglas burden-shifting and goes straight to the remedial phase to determine whether employer would have made same decision absent discrimination

Pattern or Practice Discrimination

Theory for establishing discrimination based on a pattern of dealing with members of protected class that occurs on a class-wide basis rather than individual.

What happens if P engages with sexual remarks?

This does not bar a claim bc engaging does not = welcomeness

Cat's paw theory of liability

This is when a SUPERVISOR performs an act that is motivated by animus that is intended by super to cause an adverse action, and if that act is the proximate cause of the ultimate employment action, then the employer is liable under the Uniform Services Employment and Reemployment act

Disparate Impact

This is when an employer enforces policies that appear facially neutral in treatment of different groups, but actually fall more harshly on one group than another AND cannot not be justified by business necessity.

Unequal Burdens Casino case

This is where one gender is required to meet standards that are more burdensome for one gender than other. Not all of these classifications give rise to action. Ex the casino case where women were to wear makeup and be well groomed. Court held this did not create an unequal burden. Men had to be well groomed as well. Wearing makeup was not burdensome.

How can a P bring action for Harassment by non-supervisory employees or "supers" who can't make tangible employment decisions?

Through establishing proof of employer negligence Knew or should've known failed to take reasonable steps to cure or prevent

Griggs v. Duke Power

U.S. case that set the standard for determining whether discrimination based on disparate impact exists. Here, court said the aptitude test must be related to the qualifications of employment

How should intentional discrimination be proved?

Via direct and circumstantial evidence

Constructive Discharge where employer is automatically liable.

When P quits in reasonable response to an employer-sanctioned adverse action that officially changes employment status or is a humiliating demotion, extreme cut in pay, or transfer to a position in which he would face unbearable working conditions.

What if P has direct Evi of Descrim in mixed M case?

When a plaintiff offers direct evidence of discrimination, the case avoids the McDonnel Douglas burden-shifting proof structures and moves directly into the remedial phase to determine whether the employer would have made the same decision absent discriminatory motive

Constructive discharge where employer has Aff. Defense

When p quits in response to employer's harassment. Employer can escape liability through af defense 1. Employer exercised reasonable care to prevent 2. Employee failed to take advantage

80% rule

a selection rate for any race, sex, or ethnic group which is less than 4/5 (or 80%) of the rate for the group with the highest rate will lead to the presumption of discriminatory impact

Factors to consider with claim

a. Claim must be reasonable (a reasonable person in the totality of circumstances only in relation to retaliatory act, underlying conduct which formed basis for T.VII claim irrelevant) b. Materially adverse action c. Temporal d. but-for causation e. Employer did nit discriminate

Examples of active participation clause (statutorily protected activity)

a. Employee files charges with the EEOC or similar state agency b. Employee who participates in T.VII investigation, proceeding, or hearing c. Employee encourages co-worker to enforce rights, refuses to sign false affidavit, or testifies on behalf of co-worker d. Participation does not protect employees motivated by bad faith

Scope of Statutorily Protected Activity

1. Active Participation Clause: prohibits retaliation bc an employee has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing to enforce laws prohibiting discrimination in employment 2. (Passive)Opposition Clause : prohibits retaliation bc an employee or applicant has opposed any unlawful employment practice

Employer Defenses to Retaliation Claim

1. Claim was not reasonable under totality of circumstances 2. Company was not retaliating against a protected activity, but rather an unprotected one (eg spreading fake news)

Retaliation Claim

1. Employee was engaged in a statutorily protected activity 2. Employee suffered a materially adverse action at the hands of his employer; and 3. A causal link exists between the protected activity and the adverse action 4. (30 days to file suit) Burden shifts to employer to articulate legitimate, nondiscriminatory purpose for adverse action Burden shifts back to P to show pretext

Employer Defenses to liability for discrimination (hostile work environment)

1. Employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; (distribution of anti-harassment polices= compelling evi of reasonable care) and 2. P unreasonably failed to take advantage of any preventative or corrective opportunities and provided by employer to avoid harm( fear of retaliation not an excuse, delay in reporting= not good even 3 months)

Disparate-Impact Test

1. Identify policy or practice (entrance exams) 2. This policy must have a discriminatory effect on particular trait. If so, apply 80% rule. 3. If less than 80% presumption is disparate impact, Employer will need to rebut presumption with the business necessity justification.

Evidentiary routes for proving same sex harassment was discrimination bc of sex

1. Is there credible evi that the harasser was gay 2. If victim is harassed in such a way that it is clear 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.

Prima Facie case for Mixed Motive

1. Must be a legitimate COA under T. VII 2. P must proven by preponderance of evi. employer was motivated by mixed motives then burden shifts to P to establish 2 things

Underage sexual relations with employer/supervisor

Dole court said as a matter of law underage victim can not welcome this behavior

What is a tangible employment action? Term from Fallagher

A significant change in employment status such as: hire, fire, failure to promote, reassignment with significantly different responsibilities, or decision causing significant change in benefits.

Business Necessity

A work-related practice that is necessary to the safe and efficient operation of an organization

Who is a supervisor?

An individual who can hire, fire, assign work, create discipline

Who is a supervisor?

An individual who is empowered to take tangible work actions against p

What is a materially adverse action? Defined by Burlington Northern

Any consequence (action by employer) that would dissuade a reasonable employee from making or supporting claim of discrimination. **Conduct must rise above "normal petty slights, minor annoyances, and simple lack of good manners." **

Harassment because of race reasonable person stndard

Any reasonable "black, latino, etc"

Disparate Treatment Claim. Step 3

Burden shifts back to P to show pretext. P carries the ultimate burden of proving treatment was a result of intentional discrimination. Evidence of pre-text can include, but is not limited to: i. Facts as to the treatment of the employee during the employment ii. Company's reaction, if any, to employee's legitimate civil rights activities iii. Company's general policy with respect to minority employment

Reasonable Accommodation for Religion

Case by case analysis. When there is a close case, where issue is whether the only reasonable accommodation is to eliminate the religious conflict all together, jury will decide.

Oncale effect on same-sex harassment

Courts have rejected same sex harassment claims, even where the harassment was explicitly sexual in nature, when the victim had NO EVI that the conduct was specifically motivated by sex or gender

Employer Defense to Religious Discrim

D must: a. Provide a reasonable accommodation to an employee's religion b. UNLESS employer demonstrates that he is unable to reasonably accommodate employee's religious observance or practice without undue hardship to employer's business

Key difference between disparate treatment and impact claims

DT claims require discriminatory intent while DI claims do not

What kind of evidence is required for mixed motive by P

Direct evi. not required. Sufficient evi. that would lead 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 P bring a claim for racial discrimination when his wife is a member of the protected class discriminated against? Interracial marriage OR association

Fucck Yes. When P claims discrimination based on interracial marriage OR association, he alleges by def, that he has been discriminated against bc of his race.

Are employers required to accommodate personal preferences under religious accommodation?

Fuuuck NO. Ex: 1. P objected to Grooming polices in Hussein v. Waldorf. Court rejected claim bc P never wore beard in 14 years of employment AND he could not identify where his religion stated beards were a thing. 2. Union membership, court rejected this bc employer showed: P was divorced, he lied on application, did not object to union membership at first, worked 5days a week instead of 6 required by religion, and he took an oath before notary republic.

Sex Stereotyping (Price WaterHouse)

Generalized belief about behaviors or characteristics attributed to a certain sex. Expectation that woman should wear makeup, be polite, not curse.

Intentional Discrimination (disparate treatment) q of Fact or Law?

I.D. is question of fact to be determined by the fact finder

Pretext only

If P could prove that D's proffered reasons for adverse employment action were not true reasons, P was automatically entitled to judgment in his favor. Supreme Court rejected this in HICKS

Types of Harassment

a. Sexual Harassment b. Racial or Ethnic Harassment

Types of evidence for causal link

a. through direct evidence of retaliatory animus b. proof employees who engaged in protected activity were also subject to adverse employment action c. temporal proximity btwn adverse action and p's participation in protected activity

BFOQ

bona fide occupational qualification, suitable defense against a discrimination charge only when age, religion, sex, or national origin is an actual qualification for performing the job. RACE can never be a bfoq. This only applies to disparate treatment cases

Gender nonconformity (Fire fighter case)

individuals expressing behavior and attitudes consistently characteristic of the opposite sex. (Born a man, but identifies as a woman)

Disparate Treatment

intentional discrimination that occurs when people are purposely not given the same hiring, promotion, or membership opportunities because of their race, color, sex, age, ethnic group, national origin, or religious beliefs. This claim requires discriminatory motive.

Pretext-plus Hicks CO case

when the burden shifts back to the plaintiff, plaintiff has to proffer evidence undermining the credibility of the employer's justifications, and some additional evidence that the employer's real reason was motivated by discriminatory intent. "It is not enough to disbelieve the employer; the fact finder has to believe the plaintiff's explanation of intentional discrimination." SC adopted in Hicks

Mixed Motive

→ one where employer relies on both legitimate nondiscriminatory and discriminatory reasoning when it makes an adverse employment action, and both types of thinking are motivating factors