Employment Discrimination Flashcards
Harassment
employer alters terms, conditions, or privileges of employment because of protected status
Two types of evidence
Direct and Circumstantial
direct evidence
document or statement that shows on its face discriminatory critera used as basis for action
MUST relate to protected class, proximate in time, made by person in authority, related to decision
stray remarks - comments unrelated to decision do not count
Prima Facia Case
Legally sufficient to establish a fact or a case unless disproved.
McDonnel Douglas Test
Four step test used to make a case of disparate treatment. 1) member of a protected class. 2) applied for the job and was qualified. 3) rejected. 4) Someone else got the job or continued to seek applicants w/ the plaintiff’s qualifications.
Impact of EEOC finding in court case
None. EEOC finding is irrelevant in court.
Threshold Requirements for Employment Discrimination Case
- Employer of 15(Title VII or ADA) or 20(ADEA) employees
Use traditional agency law to determine employee v. independent contractor
- Statute
- Protected Class
Title VII prohibits…
Discrimination based on race, color, national origin, sex, or religion
ADA
Americans with Disabilities Act
Protects qualified individuals on basis of disability
General Limitations for an ADA claim
Must have 15 or more employees
Cannot sue state for monetary damages (11th Amendment)
Medical exams not permitted except for offer of employment or business necessity
Failure to Accomodate Claim elements for disability
Claim for ADA
Prima Facie case:
- Plaintiff has disability within ADA definiton
- Plaintiff is qualified to perform the essential job functions
- Plaintiff suffered an adverse employment action as a result of discrimination
Three types of disabilities under the ADA
actual disability - physical or mental impairment that substantially limits one or more major life activities.
record of disability - history of actual disability
regarded as having a disability - no actual disability, but Employer believes Employee has a disability
What does substantially limits mean under the ADA?
Courts will use broad interpretation.
Need not prevent the activity. Ignore mitigating circumstances.
Episodic impairment is allowed. Drug/alcohol use is not disability.
qualified to perform
Plaintiff has the burden to prove they possess the job-related skills and the ability to perform
essential functions of a job
fundamental duties of a job
Adverse employment action
Examples wage loss, demotion, discharge, constructive discharge
constructive discharge
Employer makes working conditions intolerable such that a reasonable person would feel compelled to resign
reasonable accomodation
An interactive process between the employer and the employee to find a mutally agreeable way for the individual to perform
Defense: undue hardship on employer
Title VII applies to
Employers with 15 or more employees
private membership clubs, Indian tribes are exempt
race
racial group, perceived racial group, or race-linked characteristics
color
when the particular hue of an individual’s skin causes discrimination
national origin
birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group
Employer MAY adopt English-only rule to promote safety or efficiency, but not for discriminatory reasons
religion
any bona fide religion
mainstream is not necessary
sex
person’s gender AND sexual orientation, gender identity
ADA applies to
actual disability
physical or mental impairment that substantially limits one or more major life activities.
record of disability
history of actual disability
regarded as having a disability
no actual disability, but Employer believes Employee has a disability
Undue hardship (defense to ADA)
action that would require significant difficulty or expense
Medical Examination requirements
Employer allowed to make medical exam a condition of employment
Age Discrimination in Employment Act (ADEA)
unlawful for an Employer to discharge or discriminate against any individual because of age
Applies only to employees age 40 and older
ADEA applies to
Employers with 20 or more employees
Plaintiff must be age 40 or older
EXEMPT Employees:
Bona fide executives
Safety officers
Elected and Appointed officials
States cannot be sued for money damages (11th Amend immunity) State employee can seek injunction
ADEA elements
Claimant must show:
1) 40 years old or older
2) suffered an adverse employment action
3) qualified for position
4) replaced with another employee who was “sufficiently younger to support an inference of animus”
Exempt Employees in ADEA claim
Bona fide executives - mandatory retirement allowaed for high policymaker employees at 65 years when annual retirement benefit is greater than 44,000 and been in position for at least 2 years
Safety officers - mandatory retirement allowed, age restrictions at hiring
Elected and Appointed Officials - mandatory retirement allowed
Defense to ADEA claim
Bona fide occupational qualification (BFOQ)
Affirmative defense that treatment of older employees is reasonably necessary for normal operation of business
Reasonable factor other than age
can have disparate impact if based on reasonable factor other than age
Elements of a Bona fide occupational qualification
Bona fide occupational qualification (BFOQ)
Affirmative defense that treatment of older employees is reasonably necessary for normal operation of business
Elements:
1) Must be reasonably necessary for mission
2) impractical to assess individually
3) must have factual basis
Are early retirment plans permissible under the ADEA?
YES!
Voluntary plans are allowed
Bona fide seniority systems and benefit plans are permissible
Older Workers Benefit Protection Act allows waiver of ADEA
Constructive Discharge
Employer makes working conditions so intolerable that a reasonable person would have felt compelled to resign
Types of Employment Discrimination Claims
- Individual disparate treatment
- Systematic disparate treatment
- Disparate impact
- Failure to Accommodate (religious and disability only)
- Harassment
- Retaliation
Individual disparate treatment
Claim available under Title VII, ADA, ADEA
Employer intentionally discriminated against employee on basis of protected class
circumstantial evidence
any evidence that affects the probability of an event
Individual disparate treament claims based on direct evidence…
Establishes all necessary requirements for claim
Individual disparate treatment claim based on circumstantial evidence…
Plaintiff must establish prima facie case then
Burden shifts to employer to offer a legitimate non-discriminatory reason for treatment, if succeeds then
Plaintiff has ultimate burden of persuasion to show employers LNDR is only pretext
Prima facie case for disparate treatment
- Plaintiff member of protected class
- Qualified for the position
- Satisfactory performance
- Suffered adverse employment action
- Inference of discriminatory action (similary situated treated differently)
Prima facie case for failure to hire or promote
- Plaintiff member of protected class
- Applied for position which was qualified
- Denied hire or promotion
- Position remained open or employer continued to seek applicants or filled by another person outside of protected class
legitimate, non-discriminatory reason
any explanation offered that does not invoke protected characteristic
Rebuts the presumption of discrimination
pretext
the given reason is not the real, discriminatory reason for the action
Mixed-motive cases in disparate treatment
Title VII - show motivating factor for adverse action
ADEA - show by a preponderance of evidence that discrimination was the “but-for” cause of adverse action
after-aquired evidence
legitimate grounds for adverse employment action that is discovered after termination or not hiring employee
Does not provide defense for liability
Does limit remedies. Front pay/reinstatement is unavailable.
Systematic disparate treatment
intentional discrimination against entire class of employees
Prima facie case of systematic disparate treatment
- Employer has a facially discriminatory policy OR
- Employer engages in pattern or practice of discrimination
Discriminatory Policy
Facially discriminatory.
Defense: Bona fide occupationational qualification (never for race)
Pattern or practice of discrimination
Standard procedures discriminate against protected class
Disparate impact claim
facially neutral policy that disproportionately and adversely impacts a protected class. Motive is not needed.
How will the court determine “impact” in a disparate impact claim?
Plaintiff must show practice disproportionately excludes a protected class
4/5 rule - when protected class rate is less than 4/5 the rate for the highest group
Defense for disparate impact claim
Business necessity - practice is job-related and consistent with business necessity
DEFEAT DEFENSE:
Less discriminatory alternatives - alternative policy could achieve necessity without discriminatory effect
Failure to accomodate claim for religion under Title VII
Employer must reasonably accomodate employee sincerely held religious belief
Prima facie elements:
- Plaintiff holds bona fide religious belief that conflicts with job
- Plaintiff informed employer of his belief
- Suffered adverse employment action caused by failed job requirement
What are the two types of harassment claims?
- Quid pro quo - only applies to sexual harassment
- Hostile work environment
Quid Pro Quo claim
Applies only to sexual harassment
Prima Facie elements:
- Alleged harasser is supervisor
- Supervisor made sexual advances
- Supervisor carried out threat of consequence for refusal to submit
- Adverse employment action resulted from refusal to submit
Hostile Work Environment
Harassment does not result in tangible employment action
Unwelcome and offensive sexual conduct or conduct on account of status as a member of protected class
Conduct severe and pervasive that it alters terms and conditions of employment
Creates an abusive work environment
Reasonable person standard
Defenses to Hostile Work Environment
By Supervisor:
- ER took reasonable measures to prevent and correct behavior
- EE unreasonably failed to prevent or take advantage of prevention
By Co-Worker:
- ER liable if knew or should have known about harrassment and failed to take prompt and appropriate corrective actions
Retaliation claim
Employer may not retaliate against employee for engaging in protected activities
What are the elements of a retaliation claim?
Prima Facie elements:
- Employee engaged in protected activity
- Employer took adverse action
- Causal connection between protected activity and adverse action
Process for bringing employment discrimination claim
- File charge with EEOC or PHRC
- Charges under oath, identify parties, and describe behavior
- Statute of limitations - 180 days
- Investigation and conciliation
- Notice of dismissal - EEOC finds without merit
- Reasonable cause - EEOC finds merit, attempts conciliation
- Employee demand - Employee demands right-to-sue letter after 180 days from filing
- Filing suit in federal court
- 90 days from right-to-sue letter or dismissal
Remedies for Employment Discrimination Claims
- Compensatory damages
- Emotional distress
- Punitive damages
- Liquidated damages
- Attorney’s fees
- Reinstatement and instatement
- Back pay
- Front pay
Compensatory damages in Employment Discrimination claims
actual pecuniary and non-pecuniary losses as a result of discrimination
Available for Title VII and ADA with cap
Emotional distress - must show outward manifestations of harm
Punitive Damages in Employment Discrimination claims
Available to punish employer who acts with malice or reckless indifference
Available for Title VII and ADA
Liquidated damages in Employment Discrimination claims
ADEA allows for statutory liquidated damages equal to “lost wages”
Not available for Title VII and ADA claims
Attorney’s fees in Employment Discrimination claims
Discretion of court to award to prevailing party
Available under Title VII, ADA, ADEA
Reinstatement and instatement
Reinstatement - employer ordered to give employee job back
Instatement - employer ordered to hire employee
Back pay
equitable remedy
from date of first lost wages through date of judgment
mitigation required for Title VII and ADEA
Front Pay
equitable remedy
Compensates for economic loses that will occur until Plaintiff in rightful position
Time limit is usually imposed
Mitigation requiredjjm
