Employment Discrimination Flashcards
3 things needed for a case
- Hostile work environment
- Disparate Treatment
- Retaliation
Hostile work environment
Unwanted comments or conduct of a (protected) nature that have the purpose or effect of creating an unreasonable hostile work environment
Objective and Subjective (HWE unwanted comments)
Objective: reasonable person would be offended
Subjective: the person in question was offended
Severe and/or pervasive (HWE)
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
Protected Class
- Race
- Religion
- Gender
- Disability
- Sexual Orientation
- National Origin
- Citizenship
- Age
- Sexual Harassment
- Pregnancy
Protected Statuses
- Marital
- Military
- Parental
- Jury Duty
- Sexual Identity
- Bankruptcy
- Domestic Violence
- Genetic Status
Strict liability
When HR or owner of company is the harasser or discriminator
Faragher Ellerth
If the owner or HR is the harasser/discriminator, then the entire company is strictly liable
What defense needs to prove for FE
- Anti harassment/discrimination policy is in effect
- Policy is reasonably promulgated
- Employee unreasonably failed to avail herself of that policy
A) employee doesn’t file complaint to HR or anything
P’s counter to FE
- Reasonable basis that retaliation would occur or it would be futile to complain
- No multiple avenues to report
- Proxy liability (harasser high up)
- Quid Pro Quo
- Hostile Work Environment
- Single incident harassment
- Company failed to take appropriate action
- Employee did something to show it was unwanted to harasser
- Employer takes tangible employment action
Single incident harassment (FE counter)
One instance of an offensive word by a supervisor is enough (Spick, Nigger)
1. Employee can complain about it later on
Every Dog Gets A Free Bite
- Employer has to be on notice
- If complaint is made and it happens again, then employer is liable
Employer must take prompt action
McDonnell Douglas burden shift
- P shows prima favor case
- D proves legit non discriminatory reason action was taken
- P shows D’s response is pretext (bullshit) for behavior that is motivated by discrimination
Desert Palace v. Costa
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
University of Texas v. Nassar
P needs to show that retaliation would not have occurred “but for” the intent to retaliate (look at temporal proximity)