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Derek Smith Law School > Employment Discrimination > Flashcards

Employment Discrimination Flashcards

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1
Q

3 things needed for a case

A
  1. Hostile work environment
  2. Disparate Treatment
  3. Retaliation
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2
Q

Hostile work environment

A

Unwanted comments or conduct of a (protected) nature that have the purpose or effect of creating an unreasonable hostile work environment

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3
Q

Objective and Subjective (HWE unwanted comments)

A

Objective: reasonable person would be offended
Subjective: the person in question was offended

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4
Q

Severe and/or pervasive (HWE)

A

Needs to be severe and/or pervasive to reach a jury, one severe touching is enough to reach a jury even if it’s only one time

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5
Q

Protected Class

A
  1. Race
  2. Religion
  3. Gender
  4. Disability
  5. Sexual Orientation
  6. National Origin
  7. Citizenship
  8. Age
  9. Sexual Harassment
  10. Pregnancy
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6
Q

Protected Statuses

A
  1. Marital
  2. Military
  3. Parental
  4. Jury Duty
  5. Sexual Identity
  6. Bankruptcy
  7. Domestic Violence
  8. Genetic Status
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7
Q

Strict liability

A

When HR or owner of company is the harasser or discriminator

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8
Q

Faragher Ellerth

A

If the owner or HR is the harasser/discriminator, then the entire company is strictly liable

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9
Q

What defense needs to prove for FE

A
  1. Anti harassment/discrimination policy is in effect
  2. Policy is reasonably promulgated
  3. Employee unreasonably failed to avail herself of that policy
    A) employee doesn’t file complaint to HR or anything
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10
Q

P’s counter to FE

A
  1. Reasonable basis that retaliation would occur or it would be futile to complain
  2. No multiple avenues to report
  3. Proxy liability (harasser high up)
  4. Quid Pro Quo
  5. Hostile Work Environment
  6. Single incident harassment
  7. Company failed to take appropriate action
  8. Employee did something to show it was unwanted to harasser
  9. Employer takes tangible employment action
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11
Q

Single incident harassment (FE counter)

A

One instance of an offensive word by a supervisor is enough (Spick, Nigger)
1. Employee can complain about it later on

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12
Q

Every Dog Gets A Free Bite

A
  1. Employer has to be on notice
  2. If complaint is made and it happens again, then employer is liable
    Employer must take prompt action
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13
Q

McDonnell Douglas burden shift

A
  1. P shows prima favor case
  2. D proves legit non discriminatory reason action was taken
  3. P shows D’s response is pretext (bullshit) for behavior that is motivated by discrimination
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14
Q

Desert Palace v. Costa

A

DOES NOT APPLY TO AGE OR DISABILITY
1) mixed motive cases: if discrimination is one of those reasons, then it’s unlawful
2) p only needs preponderance of evidence (51/49)
P can proceed under McDonell or Desert

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15
Q

University of Texas v. Nassar

A

P needs to show that retaliation would not have occurred “but for” the intent to retaliate (look at temporal proximity)

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16
Q

Examples of protected activity

A
  1. Refusing to have sex
  2. Asking for an accommodation
  3. Filing an EEOC charge
17
Q

Prima Facie case

A
  1. Show you are a member of a protected class
  2. Adverse employment action occurred
  3. It occurred under circumstances giving rise to an inference of unlawful discrimination
18
Q

How to prove retaliation

A
  1. Engaged in protected activity
  2. Suffered an adverse employment action
  3. The adverse employment action occurred under circumstances giving rise to an inference of unlawful retaliation
19
Q

Constructive Discharge

A

No reasonable person in the P’s shoes should be expected to continue working under similar circumstances

20
Q

Unemployment benefits/payments

A

Not mitigated from lost wages!!

21
Q

Disability filing deadlines

A

ADAAA
300 days (since most recent incident) to file with EEOC

22
Q

What we sue for (damages)

A
  1. Emotional Distress
  2. Lost Wages (back and front)
  3. Punitive Damages
  4. Attorney’s Fees
23
Q

EPA

A

Equal Pay Act
If woman is getting paid less because of gender, the she can get double damages
Don’t need to file w EEOC

24
Q

Discrimination / Disparate Treatment

A

Treating similarly situated individuals differently based on protected class status

25
Q

Retaliation

A

When an individual suffers an adverse employment action because of an engagement

26
Q

42 USC 1981

A

Sincere belief of race
4 year SOL
No cap on damages
No need to file with DFEH or EEOC

27
Q

42 USC 1983

A

Only against gov agencies and govt employees
SOL of 2 years
When deprived of constitutional rights

Derek Smith Law School (1 decks)

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