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2022 PA Bar > Employment Discrimination > Flashcards

Employment Discrimination Flashcards

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1
Q

What employers does Title VII apply to?

A
  1. 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

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2
Q

Which classes are protected from discrimination under Title VII?

A
  1. Race
  2. Color
  3. National origin
  4. Sex
  5. Religion
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3
Q

What factors are relevant to determining whether an independent contractor is an employee?

A

Factors relevant to an agent-principal inquiry, including:

  1. supervisory authority?
  2. Discretion?
  3. boss controls tools?
  4. No special skills?
  5. On site?
  6. No beginning or end?
  7. boss’s regular business?
  8. Explicit language?
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4
Q

What employers does the Americans With Disabilities Act apply to?

A

Employers with (1) 15 or more employees (2) Working each workday for 20 weeks for current or preceding year.

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5
Q

How is disability defined under the ADA?

A

There are three definitions:

  1. Having an actual physical or mental impairment;
  2. Having a record of such impairment; or
  3. Being regarded as having such impairment
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6
Q

When does the ADA’s safe harbor for drug use apply?

A

If an individual currently using drugs establishes that he is:

  1. successfully completed or concurrently enrolled in a supervised drug rehabilitation program;
  2. has been rehabilitated successfully; or
  3. is erroneously “regarded as” engaging in the illegal use of drugs.
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7
Q

What are the elements for a prima facie failure to accommodate a disability claim under the ADA?

A

A plaintiff establishes a prima facie case of failure to accommodate by showing:

  1. She is disabled;
  2. Is qualified to perform, with or without reasonable accommodation, the essential functions of the position she holds or desires; and
  3. suffered an adverse employment action because of discrimination
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8
Q

Under the ADA, when is an employee eligible for reassignment as an accommodation?

A

An employee is eligible for reassignment when:

  1. There is a vacancy for the current position;
  2. Qualified to perform essential functions of reassignment
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9
Q

When is an “undue hardship” a defense to a failure to accommodate claim?

A

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

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10
Q

What employers does the Age Discrimination in Employment Act apply to?

A

Employers with (1) 20 or more employees (2) Working each workday for 20 weeks for current or preceding year.

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11
Q

What are the elements of an ADEA claim?

A

An ADEA claim requires establishing:

  1. Plaintiff is at least 40;
  2. Suffered an adverse employment action;
  3. Was qualified for the position; and
  4. was replaced by another employee who was “sufficiently younger to support an inference of discriminatory animus”
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12
Q

What specific employees are exempt from protection under the ADEA?

A
  1. Bona fide executives getting more than 44k in benefits and in the position for more than 2 years;
  2. Safety officers (e.g., firefighters and LEOs); and
  3. Elected and appointed officials.
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13
Q

When can an employee waive his rights under the ADEA?

A

Only if knowing and voluntary, and specifically when the waiver:

  1. is clearly written;
  2. makes specific reference to ADEA;
  3. does not waive after execution;
  4. is supported by consideration;
  5. advises consulting with an attorney; and
  6. provides a 21-day period to consider waiver, and 7 days to revoke the waiver
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14
Q

When may an employee invoke a constructive discharge to establish an adverse employment decision?

A

When an employer makes working conditions so intolerable that employee would feel compelled to resign

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15
Q

What are the elements for a hostile work environment claim?

A
  1. Unwelcome or offensive sexual or discriminatory conduct
  2. so severe and pervasive it alters conditions of employment
  3. that creates objectively abusive working environment; and
  4. is subjectively perceived that way by P
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16
Q

What are the elements for a prima facie case of retaliation?

A
  1. The employee engaged in an activity protected by one of the discrimination statutes or Title VII;
  2. The employer subsequently took action adverse to employee; and
  3. A causal connection exists between the activity and the action.
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17
Q

Can English-only rules withstand Title VII scrutiny?

A

Yes, if needed to promote the safe or efficient operation of a business and not for discriminatory reasons

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18
Q

What religions are protected by Title VII?

A

Any, provided the religious belief is sincere

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19
Q

Does Title VII prohibit discrimination based on stereotypes?

A

Yes

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20
Q

Is drug or alcohol use a disability under the ADA?

A

No, unless falling within a safe harbor

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21
Q

What constitutes an impairment under the ADA?

A

A disability that “substantially limits” the ability of an individual to perform a major life activity

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22
Q

Are mitigating measures relevant to assessing whether someone is impaired?

A

No, with the exception of eyeglasses and contacts

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23
Q

Does the ADA prohibit discrimination against employees on the basis of their relationship to a person with a disability

A

Yes, even if the employee herself is not disabled.

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24
Q

What accommodations must an employer make under the ADA

A

Only reasonable accommodations for KNOWN disabilities

25
Q

Does an employer have a duty to create vacancies under the ADA?

A

No

26
Q

When can an employer require medical examinations as a condition to an offer of employment under the ADA?

A

Pre-employment medical examinations are permissible only if:

  1. All entering employees in similar jobs are subject to the same requirement; and
  2. The results are kept confidential
27
Q

Can an employer require current employees to take medical exams under the ADA?

A

No, unless job-related and consistent with business necessity

28
Q

How old must a plaintiff be to bring an ADEA claim?

A

At least 40

29
Q

What is a bona fide occupational qualification?

A

An affirmative defense in which a restriction is reasonably necessary to the normal operation of the business

Applies to ADEA claims. Never for race.

30
Q

Can an employer fire someone for good cause under the ADEA?

A

Yes

31
Q

Are seniority systems and employee benefit plans permissible under the ADEA?

A

Yes

32
Q

What is an individual disparate treatment claim?

A

An employer intentionally discriminated against an individual employee on the basis of a protected characteristic

33
Q

What is the McDonnell-Douglas burden shifting framework?

A
  1. Plaintiff establishes a prima facie case of disparate treatment discrimination;
  2. The burden then shifts to the employer offers a legitimate, non-discriminatory reason; and
  3. the plaintiff must then establish the proffered reason was pretextual
34
Q

What is a prima facie case for disparate treatment?

A

The plaintiff must show they:

  1. Are a member of a protected class;
  2. Were qualified and performing satisfactorily;
  3. Suffered an adverse employment action under circumstances that permit an inference of discriminatory intent.
35
Q

What is a prima facie case for failure to hire?

A

The plaintiff must show they:

  1. Are a member of a protected class;
  2. Applied for an open position for which they were qualified; and
  3. The position remained open or was filled by another person outside the plaintiff’s class
36
Q

Are stray remarks by a non-decisionmaker sufficient to establish direct discrimination?

A

No

37
Q

Do mixed-motive cases apply to ADEA cases?

A

No; the plaintiff must establish but-for causation for ADEA claims

38
Q

What is a mixed-motive case?

A

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

39
Q

Do mixed-motive cases apply to retaliation cases under Title VII?

A

No

Split among courts of appeal on ADA cases

40
Q

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?

A

No, only declaratory or injunctive relief

41
Q

What are the elements of a failure to accommodate religious belief claim under Title VII?

A

A plaintiff must show that he:

  1. Holds a bona fide religious belief that conflicts with a job requirement;
  2. Informed his employer of his belief; and
  3. Suffered an adverse employment action on account of failing to comply with the conflicting job requirement.
42
Q

What constitutes quid pro quo sexual harassment?

A
  1. a supervisor makes a sexual advance;
  2. With the threat of consequence; and
  3. an adverse employment action resulted from a refusal to submit to the advance
43
Q

Can an employee bring a discrimination claim without filing with the EEOC?

A

No

44
Q

When must an employee file a charge of discrimination with the EEOC?

A

Within 180 days of the most recent adverse employment action

45
Q

Can a plaintiff file a charge with the Pennsylvania Human Resources Commission?

A

Yes, if within 180 days of the adverse employment action, and it extends the EEOC filing deadline to 300 days

46
Q

How many days does a plaintiff have to file in court following an EEOC dismissal or right-to-sue letter?

A

90 days

47
Q

Can a plaintiff file in court without an EEOC dismissal or right-to-sue letter?

A

No

48
Q

Are compensatory damages available under the ADEA?

A

No

49
Q

Are punitive damages available under the ADEA?

A

No, but it allows for liquidated damages equal to “lost wages”

50
Q

Are punitive damages available under Title VII and the ADA?

A

Yes, but they are capped:

  1. If employer has 15 to 100 employees, $50,000;
  2. If 101 and 200, $100,000; and
  3. If 201 and 500, $200,000
51
Q

Are attorney’s fees recoverable under Title VII, the ADA, and the ADEA?

A

Yes, if a prevailing party

52
Q

Does a plaintiff have a duty to mitigate damages under Title VII and the ADEA?

A

Yes

53
Q

Can a plaintiff seek reinstatement as a remedy?

A

Yes, though it may be delayed if there is no vacancy

54
Q

When is backpay available as a remedy to a discrimination plaintiff?

A

For compensation for lost wages, pay, etc. Capped at two years before the charge was filed with the EEOC.

55
Q

Is front pay available as a remedy to a discrimination plaintiff?

A

Yes, but it may be reduced for failure to reasonably mitigate losses

56
Q

Do temporary, non-chronic impairments “substantially limit” a major life activity under the ADA?

A

Probably not, but since the 2008 amendments to ADA this remains unsettled

57
Q

What is the RFOA defense to an ADEA claim

A

Reasonable factor other than age, which is a defense to a disparate impact claim

58
Q

Can a voluntary severance plan form the basis of an ADEA claim?

A

No

2022 PA Bar (19 decks)

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