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)
Examples of protected activity
- Refusing to have sex
- Asking for an accommodation
- Filing an EEOC charge
Prima Facie case
- Show you are a member of a protected class
- Adverse employment action occurred
- It occurred under circumstances giving rise to an inference of unlawful discrimination
How to prove retaliation
- Engaged in protected activity
- Suffered an adverse employment action
- The adverse employment action occurred under circumstances giving rise to an inference of unlawful retaliation
Constructive Discharge
No reasonable person in the P’s shoes should be expected to continue working under similar circumstances
Unemployment benefits/payments
Not mitigated from lost wages!!
Disability filing deadlines
ADAAA
300 days (since most recent incident) to file with EEOC
What we sue for (damages)
- Emotional Distress
- Lost Wages (back and front)
- Punitive Damages
- Attorney’s Fees
EPA
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
Discrimination / Disparate Treatment
Treating similarly situated individuals differently based on protected class status
