Claims: Systemic Disparate Treatment

Question 1

When is systemic disparate treatment present?

Answer 1

When an employer discriminates against an entire class.

Question 2

To establish a systemic disparate treatment claim, a plaintiff must show what?

Answer 2

Intent

Question 3

What are the two methods of proving a systemic disparate treatment claim?

Answer 3

Facially discriminatory policy; or

Pattern/practice of discriminaiton.

Question 4

When an employer has a formal policy of discrimination under a a systemic disparate treatment claim, what three statutory defenses may he offer?

Which is ADEA only?

Answer 4

Bona Fide Occupational Qualification (BFOQ)

Bona Fide Seniority System

Bona Fide Employee Benefit Plan (ADEA only)

Question 5

True or false? The only way to avoid liability for a formal policy of discrimination under a systemic disparate treatment claim is to establish a statutory defense.

Answer 5

True

Question 6

Describe what the BFOQ Defense says.

Answer 6

It is NOT unlawful for an employer to take action otherwise prohibited where age (ADEA) or sex, religion, or national origin (Title VII) is a bona fide occupational qualification REASONABLY NECESSARY to the normal operation of the particular business.

Question 7

A BFOQ must be _______ ________ to the normal operation of the particular business

Answer 7

Reasonably necessary.

Question 8

To prove a BFOQ for a formal policy of discrimination under a systemic disparate treatment claim, the Defendant must prove what two things?

Answer 8

Qualification is reasonably necessary to the normal operation of the particular business; and

[Religion, sex, national origin, or age] is a proxy for the qualification (2 ways to show)

Question 9

A defendant can prove that a BFOQ for a formal policy of discrimination under a systemic disparate treatment claim is A PROXY FOR THE QUALIFICATION by showing one of these two things. . .

Answer 9

There is a reasonable cause to believe that all or substantially all of the persons in the class are unable to perform safely and efficiently duties of the job (i.e., reasonable to think that no one in the class can do the work); OR

Some employees in the class possess a trait precluding safe and efficient job performance, and it is practically impossible for the employer to deal with the class of employees on an individual basis.

Question 10

A battery factory excludes women from dangerous jobs due to their fertility and concerns thereof. Is this an BFOQ? Explain.

Answer 10

No. The safety of third parties (i.e., potential children) is not an aspect of battery making, so no BFOQ.

Question 11

A max security prison requires that all guards be men because the placement of female guards in prisons may create safety problems for the guards and inmates. BFOQ? Explain

Answer 11

Yes. The safety of inmates and guards is part of the job.

Question 12

What does NOT count as a Bona Fide Seniority System defense under a systemic disparate treatment claim?

Answer 12

One that requires involuntary retirement due to age.

Question 13

Which statutory defense to a systemic disparate treatment claim applies to ADEA only?

Answer 13

Bona Fide Employee Benefit Plan.

Question 14

What is the plaintiff’s prima face case in a systemic disparate treatment claim? In other words, what must plaintiff prove?

Answer 14

That the employer’s standard operating procedure discriminates against a protected class.

Question 15

In establishing a prima facie case in a systemic disparate treatment claim for Pattern or practice of discrim, the plaintiff may prove that the employer’s standard operating procedure discriminates against a protected class in one of these three ways. . .

Answer 15

Statistics

Anecdotal Evidence

Historical Evidence.

Question 16

When using statistics to prove a prima facie case in a systemic disparate treatment claim, the comparison groups must be correct in which two things?

Answer 16

Geographic space; AND

Skill

Question 17

Once a plaintiff establishes a prima facie case in a systemic disparate treatment claim, the defendant has four options. They are

Answer 17

Challenge the factual basis of the plaintiff’s prima facie case

Challenge the inference of discriminatory intent the statistics raise

Assert a statutory defense (BFOQ)

Effort to avoid disparate impact liability

Question 18

Once a plaintiff establishes a prima facie case in a systemic disparate treatment claim, the defendant may assert the following defense:

An employer may engage in disparate treatment to avoid disparate impact liability ONLY when . . . .

Answer 18

The employer has a strong basis in evidence to believe that it will be subject to disparate impact liability IF it fails to take the action.

Question 19

If an employer elects to engage in voluntary affirmative action, the plan must . . . (3)

Name of test?

Answer 19

Aim to remedy a manifest imbalance . . .

In traditionally segregated job categories, and . . .

Cannot unduly trammel the rights of disfavored groups

WEBER TEST

Question 20

When can voluntary affirmative action be a LNDR under a claim of systemic disparate treatment?

Answer 20

When it meets the Weber Test, meaning it

Aims to remedy a manifest imbalance . . .

In traditionally segregated job categories, and

Does not unduly trammel the rights of disfavored groups

Question 21

Once a defendant produces an LNDR of a voluntary affirmative action plan in a systemic disparate treatment claim, the plaintiff must prove what?

Answer 21

That the affirmative action plan is invalid by proving it does not meet the Weber Test

Question 22

If a public employer is called to task for using a voluntary affirmative action plan in a systemic disparate treatment claim, what could he also be liable for?

Answer 22

An Equal Protection claim.