Employment Discrimination Flashcards
What employers does Title VII apply to?
- Employers with (1) 15 or more employees (2) Working each workday for 20 weeks for current or preceding year
NOT private member clubs or Indian tribes
Which classes are protected from discrimination under Title VII?
- Race
- Color
- National origin
- Sex
- Religion
What factors are relevant to determining whether an independent contractor is an employee?
Factors relevant to an agent-principal inquiry, including:
- supervisory authority?
- Discretion?
- boss controls tools?
- No special skills?
- On site?
- No beginning or end?
- boss’s regular business?
- Explicit language?
What employers does the Americans With Disabilities Act apply to?
Employers with (1) 15 or more employees (2) Working each workday for 20 weeks for current or preceding year.
How is disability defined under the ADA?
There are three definitions:
- Having an actual physical or mental impairment;
- Having a record of such impairment; or
- Being regarded as having such impairment
When does the ADA’s safe harbor for drug use apply?
If an individual currently using drugs establishes that he is:
- successfully completed or concurrently enrolled in a supervised drug rehabilitation program;
- has been rehabilitated successfully; or
- is erroneously “regarded as” engaging in the illegal use of drugs.
What are the elements for a prima facie failure to accommodate a disability claim under the ADA?
A plaintiff establishes a prima facie case of failure to accommodate by showing:
- She is disabled;
- Is qualified to perform, with or without reasonable accommodation, the essential functions of the position she holds or desires; and
- suffered an adverse employment action because of discrimination
Under the ADA, when is an employee eligible for reassignment as an accommodation?
An employee is eligible for reassignment when:
- There is a vacancy for the current position;
- Qualified to perform essential functions of reassignment
When is an “undue hardship” a defense to a failure to accommodate claim?
If the employee satisfies her prima facie case, the employer has the burden of proof to show a particular accommodation would impose an undue hardship
What employers does the Age Discrimination in Employment Act apply to?
Employers with (1) 20 or more employees (2) Working each workday for 20 weeks for current or preceding year.
What are the elements of an ADEA claim?
An ADEA claim requires establishing:
- Plaintiff is at least 40;
- Suffered an adverse employment action;
- Was qualified for the position; and
- was replaced by another employee who was “sufficiently younger to support an inference of discriminatory animus”
What specific employees are exempt from protection under the ADEA?
- Bona fide executives getting more than 44k in benefits and in the position for more than 2 years;
- Safety officers (e.g., firefighters and LEOs); and
- Elected and appointed officials.
When can an employee waive his rights under the ADEA?
Only if knowing and voluntary, and specifically when the waiver:
- is clearly written;
- makes specific reference to ADEA;
- does not waive after execution;
- is supported by consideration;
- advises consulting with an attorney; and
- provides a 21-day period to consider waiver, and 7 days to revoke the waiver
When may an employee invoke a constructive discharge to establish an adverse employment decision?
When an employer makes working conditions so intolerable that employee would feel compelled to resign
What are the elements for a hostile work environment claim?
- Unwelcome or offensive sexual or discriminatory conduct
- so severe and pervasive it alters conditions of employment
- that creates objectively abusive working environment; and
- is subjectively perceived that way by P
What are the elements for a prima facie case of retaliation?
- The employee engaged in an activity protected by one of the discrimination statutes or Title VII;
- The employer subsequently took action adverse to employee; and
- A causal connection exists between the activity and the action.
Can English-only rules withstand Title VII scrutiny?
Yes, if needed to promote the safe or efficient operation of a business and not for discriminatory reasons
What religions are protected by Title VII?
Any, provided the religious belief is sincere
Does Title VII prohibit discrimination based on stereotypes?
Yes
Is drug or alcohol use a disability under the ADA?
No, unless falling within a safe harbor
What constitutes an impairment under the ADA?
A disability that “substantially limits” the ability of an individual to perform a major life activity
Are mitigating measures relevant to assessing whether someone is impaired?
No, with the exception of eyeglasses and contacts
Does the ADA prohibit discrimination against employees on the basis of their relationship to a person with a disability
Yes, even if the employee herself is not disabled.
What accommodations must an employer make under the ADA
Only reasonable accommodations for KNOWN disabilities
Does an employer have a duty to create vacancies under the ADA?
No
When can an employer require medical examinations as a condition to an offer of employment under the ADA?
Pre-employment medical examinations are permissible only if:
- All entering employees in similar jobs are subject to the same requirement; and
- The results are kept confidential
Can an employer require current employees to take medical exams under the ADA?
No, unless job-related and consistent with business necessity
How old must a plaintiff be to bring an ADEA claim?
At least 40
What is a bona fide occupational qualification?
An affirmative defense in which a restriction is reasonably necessary to the normal operation of the business
Applies to ADEA claims. Never for race.
Can an employer fire someone for good cause under the ADEA?
Yes
Are seniority systems and employee benefit plans permissible under the ADEA?
Yes
What is an individual disparate treatment claim?
An employer intentionally discriminated against an individual employee on the basis of a protected characteristic
What is the McDonnell-Douglas burden shifting framework?
- Plaintiff establishes a prima facie case of disparate treatment discrimination;
- The burden then shifts to the employer offers a legitimate, non-discriminatory reason; and
- the plaintiff must then establish the proffered reason was pretextual
What is a prima facie case for disparate treatment?
The plaintiff must show they:
- Are a member of a protected class;
- Were qualified and performing satisfactorily;
- Suffered an adverse employment action under circumstances that permit an inference of discriminatory intent.
What is a prima facie case for failure to hire?
The plaintiff must show they:
- Are a member of a protected class;
- Applied for an open position for which they were qualified; and
- The position remained open or was filled by another person outside the plaintiff’s class
Are stray remarks by a non-decisionmaker sufficient to establish direct discrimination?
No
Do mixed-motive cases apply to ADEA cases?
No; the plaintiff must establish but-for causation for ADEA claims
What is a mixed-motive case?
A plaintiff may prevail in a Title VII case by showing that an employer’s actions were the result of both legitimate and discriminatory reasons
Do mixed-motive cases apply to retaliation cases under Title VII?
No
Split among courts of appeal on ADA cases
Is a plaintiff entitled to damages in a mixed-motive case if the employer can show they would have reached the same decision in the absence of a discriminatory reason?
No, only declaratory or injunctive relief
What are the elements of a failure to accommodate religious belief claim under Title VII?
A plaintiff must show that he:
- Holds a bona fide religious belief that conflicts with a job requirement;
- Informed his employer of his belief; and
- Suffered an adverse employment action on account of failing to comply with the conflicting job requirement.
What constitutes quid pro quo sexual harassment?
- a supervisor makes a sexual advance;
- With the threat of consequence; and
- an adverse employment action resulted from a refusal to submit to the advance
Can an employee bring a discrimination claim without filing with the EEOC?
No
When must an employee file a charge of discrimination with the EEOC?
Within 180 days of the most recent adverse employment action
Can a plaintiff file a charge with the Pennsylvania Human Resources Commission?
Yes, if within 180 days of the adverse employment action, and it extends the EEOC filing deadline to 300 days
How many days does a plaintiff have to file in court following an EEOC dismissal or right-to-sue letter?
90 days
Can a plaintiff file in court without an EEOC dismissal or right-to-sue letter?
No
Are compensatory damages available under the ADEA?
No
Are punitive damages available under the ADEA?
No, but it allows for liquidated damages equal to “lost wages”
Are punitive damages available under Title VII and the ADA?
Yes, but they are capped:
- If employer has 15 to 100 employees, $50,000;
- If 101 and 200, $100,000; and
- If 201 and 500, $200,000
Are attorney’s fees recoverable under Title VII, the ADA, and the ADEA?
Yes, if a prevailing party
Does a plaintiff have a duty to mitigate damages under Title VII and the ADEA?
Yes
Can a plaintiff seek reinstatement as a remedy?
Yes, though it may be delayed if there is no vacancy
When is backpay available as a remedy to a discrimination plaintiff?
For compensation for lost wages, pay, etc. Capped at two years before the charge was filed with the EEOC.
Is front pay available as a remedy to a discrimination plaintiff?
Yes, but it may be reduced for failure to reasonably mitigate losses
Do temporary, non-chronic impairments “substantially limit” a major life activity under the ADA?
Probably not, but since the 2008 amendments to ADA this remains unsettled
What is the RFOA defense to an ADEA claim
Reasonable factor other than age, which is a defense to a disparate impact claim
Can a voluntary severance plan form the basis of an ADEA claim?
No
