All Subjects

Question 1

Pregnancy discrimination

Answer 1

Unlawful under Title VII

Title VII req: >=15 EEs, not brought against a religious institution, private club or indian tribe

PF Case: ER refused to accommodate a pregnant woman, but did accommodate others who were similar in their inabilities to work

ER burden Shift: Must show a legitimate, non-discriminatory reason

P burden shift: Must show pretext

Question 2

Religious practice discrimination

Answer 2

Unlawful under Title VII

Title VII req: >=15 EEs, not brought against a religious institution, private club or indian tribe

PF Case: EE holds a sincere religious belief + EE informed ER as to the belief + EE suffered adverse consequences for failing to comply with the conflicting requirement of employment

Burden shift to ER: Must show either:

• ER made a good faith effort to reasonably accommodate EE
• Any accommodation would be an undue hardship on ER
• ER is a religious organization employing individuals related to its mission OR ministerial exception

Question 3

Age discrimination claim

Answer 3

ADEA reqs:

• Private ER w/ >=20 EEs, State or local gov (of any size), Labor unions, Employment agencies
• P must be >= 40yo
• Must allege P was discriminated against in favor of someone younger

Defenses:
- Good cause / reasonable factors other than age

Question 4

Disability claim

Answer 4

ADA Req: ER must have >=15 EEs

D must show:

• D was presently disabled (mental or physical impairment that substantially limits a major life activity), had a record of disability, or was regarded as disabled
• D was a qualified individual, (w/ or w/o a reasonable accommodation, they could perform the essential functions of the job)

Burden shifts to D to prove:
- Legitimate, non-discriminatory reason
- Undue hardship (from any accommodations)
- Direct threat
Job-related and consistent with business necessity

Question 5

Individual disparate treatment claim w/ single motive

Answer 5

PF case:

• P was member of protected class
• P was qualified for the position
• Adverse employment action
• Position remains open or was filled with someone outside the protected class

Burden shifts to ER to articulate legitimate non-discriminatory reason

Burden shifts to P to prove pretext

Question 6

Individual disparate treatment claim w/ mixed motives

Answer 6

Title VII:

• Liability attaches if the impermissible reason was a motivating factor in the decision
• If D can show that it would have made the same decision in the absence of the impermissible reason, court may grant injunctive relief + fees, but not damages or reinstatement

ADA:

• P must show direct evidence that an impermissible reason was a motivating factor
• D may avoid liability by showing that it would have made the same decision in the absence of the impermissible reason

Question 7

Systemic Disparate Treatment Claim

Answer 7

P must show either:

• Facially discriminatory policy (D’s only defense is a bona fide occupational qualification - characteristic is a close proxy for reasonably necessary skills required by the business)
• Pattern or practice of discrimination. D can rebut w/ BFOQ, by challenging P’s factual basis, Avoidance of Disparate Impact Liability as a defense, Voluntary AA

Question 8

System disparate impact claim

Answer 8

PF case:

• D’s particular employment practice has a significant adverse impact on a protected class
• P must show that a particular practice caused the disparate impact UNLESS the bottom-line exception applies

Burden (of persuasion) shifts to D to show that the challenged practice is related to job performance and consistent with business necessity. D may also claim that the practice was a Professionally Developed Test or a Bona Fide Seniority Systems

Burden shifts to P to show that there is an alternative practice that would meet the business objectives without adverse impact, which D has refused to adopt

Question 9

Harassment claim

Answer 9

Quid pro quo: P either submitted to sexual demands or suffered a tangible employment action as the result of not submitting to the demands, which were made a condition of tangible employment benefits

Hostile work environment

• P is a member of a protected class, who was subject to unwelcome, severe or pervasive harassment which unreasonably interfered with her work
• Defenses: If supervisor harassment, D must show that ER used reasonable care to prevent / promptly correct the behavior AND EE failed to use reporting procedures created by ER. If co-worker harassment, ER must show that it did not have reason to know of the conduct OR that it took remedial action.

Question 10

Retaliation Claim

Answer 10

PF Case:

• Opposition conduct (P is challenging employment practice) or participation conduct (P was participating in the formal complaint structure)
• Adverse employment action
• Causal connection between the statutorily protected expression and the AEA

Burden shifts to D to show a legitimate, non-discriminatory reason

Burden shifts to P to show pretext