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PA Bar Exam > Employment Discrimination > Flashcards

Employment Discrimination Flashcards

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1
Q

Harassment

A

employer alters terms, conditions, or privileges of employment because of protected status

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2
Q

Two types of evidence

A

Direct and Circumstantial

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3
Q

direct evidence

A

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

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4
Q

Prima Facia Case

A

Legally sufficient to establish a fact or a case unless disproved.

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5
Q

McDonnel Douglas Test

A

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.

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6
Q

Impact of EEOC finding in court case

A

None. EEOC finding is irrelevant in court.

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7
Q

Threshold Requirements for Employment Discrimination Case

A
  1. Employer of 15(Title VII or ADA) or 20(ADEA) employees

Use traditional agency law to determine employee v. independent contractor

  1. Statute
  2. Protected Class
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8
Q

Title VII prohibits…

A

Discrimination based on race, color, national origin, sex, or religion

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9
Q

ADA

A

Americans with Disabilities Act

Protects qualified individuals on basis of disability

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10
Q

General Limitations for an ADA claim

A

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

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11
Q

Failure to Accomodate Claim elements for disability

A

Claim for ADA

Prima Facie case:

  1. Plaintiff has disability within ADA definiton
  2. Plaintiff is qualified to perform the essential job functions
  3. Plaintiff suffered an adverse employment action as a result of discrimination
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12
Q

Three types of disabilities under the ADA

A

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

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13
Q

What does substantially limits mean under the ADA?

A

Courts will use broad interpretation.

Need not prevent the activity. Ignore mitigating circumstances.

Episodic impairment is allowed. Drug/alcohol use is not disability.

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14
Q

qualified to perform

A

Plaintiff has the burden to prove they possess the job-related skills and the ability to perform

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15
Q

essential functions of a job

A

fundamental duties of a job

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16
Q

Adverse employment action

A

Examples wage loss, demotion, discharge, constructive discharge

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17
Q

constructive discharge

A

Employer makes working conditions intolerable such that a reasonable person would feel compelled to resign

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18
Q

reasonable accomodation

A

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

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19
Q

Title VII applies to

A

Employers with 15 or more employees

private membership clubs, Indian tribes are exempt

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20
Q

race

A

racial group, perceived racial group, or race-linked characteristics

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21
Q

color

A

when the particular hue of an individual’s skin causes discrimination

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22
Q

national origin

A

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

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23
Q

religion

A

any bona fide religion

mainstream is not necessary

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24
Q

sex

A

person’s gender AND sexual orientation, gender identity

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25
Q

ADA applies to

A
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26
Q

actual disability

A

physical or mental impairment that substantially limits one or more major life activities.

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27
Q

record of disability

A

history of actual disability

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28
Q

regarded as having a disability

A

no actual disability, but Employer believes Employee has a disability

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29
Q

Undue hardship (defense to ADA)

A

action that would require significant difficulty or expense

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30
Q

Medical Examination requirements

A

Employer allowed to make medical exam a condition of employment

31
Q

Age Discrimination in Employment Act (ADEA)

A

unlawful for an Employer to discharge or discriminate against any individual because of age

Applies only to employees age 40 and older

32
Q

ADEA applies to

A

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

33
Q

ADEA elements

A

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”

34
Q

Exempt Employees in ADEA claim

A

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

35
Q

Defense to ADEA claim

A

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

36
Q

Elements of a Bona fide occupational qualification

A

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

37
Q

Are early retirment plans permissible under the ADEA?

A

YES!

Voluntary plans are allowed

Bona fide seniority systems and benefit plans are permissible

Older Workers Benefit Protection Act allows waiver of ADEA

38
Q

Constructive Discharge

A

Employer makes working conditions so intolerable that a reasonable person would have felt compelled to resign

39
Q

Types of Employment Discrimination Claims

A
  • Individual disparate treatment
  • Systematic disparate treatment
  • Disparate impact
  • Failure to Accommodate (religious and disability only)
  • Harassment
  • Retaliation
40
Q

Individual disparate treatment

A

Claim available under Title VII, ADA, ADEA

Employer intentionally discriminated against employee on basis of protected class

41
Q

circumstantial evidence

A

any evidence that affects the probability of an event

42
Q

Individual disparate treament claims based on direct evidence…

A

Establishes all necessary requirements for claim

43
Q

Individual disparate treatment claim based on circumstantial evidence…

A

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

44
Q

Prima facie case for disparate treatment

A
  • Plaintiff member of protected class
  • Qualified for the position
  • Satisfactory performance
  • Suffered adverse employment action
  • Inference of discriminatory action (similary situated treated differently)
45
Q

Prima facie case for failure to hire or promote

A
  • 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
46
Q

legitimate, non-discriminatory reason

A

any explanation offered that does not invoke protected characteristic

Rebuts the presumption of discrimination

47
Q

pretext

A

the given reason is not the real, discriminatory reason for the action

48
Q

Mixed-motive cases in disparate treatment

A

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

49
Q

after-aquired evidence

A

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.

50
Q

Systematic disparate treatment

A

intentional discrimination against entire class of employees

51
Q

Prima facie case of systematic disparate treatment

A
  • Employer has a facially discriminatory policy OR
  • Employer engages in pattern or practice of discrimination
52
Q

Discriminatory Policy

A

Facially discriminatory.

Defense: Bona fide occupationational qualification (never for race)

53
Q

Pattern or practice of discrimination

A

Standard procedures discriminate against protected class

54
Q

Disparate impact claim

A

facially neutral policy that disproportionately and adversely impacts a protected class. Motive is not needed.

55
Q

How will the court determine “impact” in a disparate impact claim?

A

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

56
Q

Defense for disparate impact claim

A

Business necessity - practice is job-related and consistent with business necessity

DEFEAT DEFENSE:

Less discriminatory alternatives - alternative policy could achieve necessity without discriminatory effect

57
Q

Failure to accomodate claim for religion under Title VII

A

Employer must reasonably accomodate employee sincerely held religious belief

Prima facie elements:

  1. Plaintiff holds bona fide religious belief that conflicts with job
  2. Plaintiff informed employer of his belief
  3. Suffered adverse employment action caused by failed job requirement
58
Q
A
59
Q

What are the two types of harassment claims?

A
  1. Quid pro quo - only applies to sexual harassment
  2. Hostile work environment
60
Q

Quid Pro Quo claim

A

Applies only to sexual harassment

Prima Facie elements:

  1. Alleged harasser is supervisor
  2. Supervisor made sexual advances
  3. Supervisor carried out threat of consequence for refusal to submit
  4. Adverse employment action resulted from refusal to submit
61
Q

Hostile Work Environment

A

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

62
Q

Defenses to Hostile Work Environment

A

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
63
Q

Retaliation claim

A

Employer may not retaliate against employee for engaging in protected activities

64
Q

What are the elements of a retaliation claim?

A

Prima Facie elements:

  • Employee engaged in protected activity
  • Employer took adverse action
  • Causal connection between protected activity and adverse action
65
Q

Process for bringing employment discrimination claim

A
  1. File charge with EEOC or PHRC
    1. Charges under oath, identify parties, and describe behavior
    2. Statute of limitations - 180 days
  2. Investigation and conciliation
    1. Notice of dismissal - EEOC finds without merit
    2. Reasonable cause - EEOC finds merit, attempts conciliation
    3. Employee demand - Employee demands right-to-sue letter after 180 days from filing
  3. Filing suit in federal court
    1. 90 days from right-to-sue letter or dismissal
66
Q

Remedies for Employment Discrimination Claims

A
  • Compensatory damages
    • Emotional distress
  • Punitive damages
  • Liquidated damages
  • Attorney’s fees
  • Reinstatement and instatement
  • Back pay
  • Front pay
67
Q

Compensatory damages in Employment Discrimination claims

A

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

68
Q

Punitive Damages in Employment Discrimination claims

A

Available to punish employer who acts with malice or reckless indifference

Available for Title VII and ADA

69
Q

Liquidated damages in Employment Discrimination claims

A

ADEA allows for statutory liquidated damages equal to “lost wages”

Not available for Title VII and ADA claims

70
Q

Attorney’s fees in Employment Discrimination claims

A

Discretion of court to award to prevailing party

Available under Title VII, ADA, ADEA

71
Q

Reinstatement and instatement

A

Reinstatement - employer ordered to give employee job back

Instatement - employer ordered to hire employee

72
Q

Back pay

A

equitable remedy

from date of first lost wages through date of judgment

mitigation required for Title VII and ADEA

73
Q

Front Pay

A

equitable remedy

Compensates for economic loses that will occur until Plaintiff in rightful position

Time limit is usually imposed

Mitigation requiredjjm

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