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September 2020 Bar Exam > Employment Discrimination > Flashcards

Employment Discrimination Flashcards

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1
Q

Statutes Controlling Employment Discrimination Law

A

1) Title VII of the CRA
2) Age Discrimination in Employment Act (ADEA)
3) Americans with Disabilities Act (ADA)

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2
Q

Title VII Language

A

It shall be an unlawful employment practice for an employer to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.

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3
Q

Plaintiffs/Protected Classes in Title VII Cases + Remember National Origin v. Citizenship

A

Race, Religion, Color, Sex, National Origin

Remember: For national origin, this is NOT CITIZENSHIP

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4
Q

Defendants in Title VII Cases

+ Exempt Defendants

A

1) Employer with 15 or more employees (UNLESS state or local gov’t)
2) Labor Unions
3) Employment Agencies

Exemptions:

1) Religious Institutions
2) Private Membership Clubs
3) Indian Tribes

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5
Q

ADEA Plaintiff Elements

A

Plaintiff must be AT LEAST 40 years old AND must allege he was discriminated against in favor of someone younger.

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6
Q

ADEA Defendants + Exempt Defendants

A

1) Employers with 20 or more employees,
2) Labor Unions, or
3) Employment Agencies

Exempt: States retain their immunity from suit (11th Amendment)

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7
Q

ADEA Language

A

It shall be unlawful for an employer to discriminate against any individual with respect to compensation, conditions, or privileges of employment because of such individual’s age

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8
Q

ADA Language + Accommodations Provision

A

No covered entity shall discriminate against a qualified individual on the basis of disability in regard to hiring, advancement, or firing of employees, compensation, training, and privileges of employment

In addition, prohibited action includes failing to make a REASONABLE accommodation UNLESS the employer can demonstrate that the accommodation would cause UNDUE HARDSHIP

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9
Q

ADA Plaintiffs Language + 3x3x3

A

Qualified individuals discriminated against on the basis of disability

3x3x3: Three ways to be in a protected class (1. apparent disability, 2. record of disability, or 3. regarded as having a physical or mental impairment)

Disability is defined as…(1. mental or physical impairment, 2. substantially limits, 3. major life activity)

Qualified individual is (1. an individual with a disability, 2. with or without reasonable accommodation, 3. can perform the essential functions of the job)

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10
Q

ADA Defendants + Exemption

A

Employers who have at least 15 employees

Exemption: States retain their 11th Amendment immunity for the employment section

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11
Q

Types of Employment Discrimination Claims

A
  1. Individual Disparate Treatment
  2. Systemic Disparate Treatment
  3. Disparate Impact
  4. Harassment
  5. Retaliation
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12
Q

Individual Disparate Treatment Definition

A

The employer treats an employee differently from other because of a prohibited characteristic

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13
Q

Two types of Individual Disparate Treatment

A
  1. Single Motive

2. Mixed Motive

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14
Q

IDT: Proving a Single Motive Case - Prima Facie Stage

A
  1. MEMBERSHIP in a protected class
  2. QUALIFIED for a position
  3. APPLIED for position
  4. Show ADVERSE EMPLOYMENT ACTION
  5. Position remained OPEN or FILLED with someone outside your protected class

This creates a presumption of discrimination which shifts the burden to the defendant

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15
Q

IDT: Proving a Single Motive Case - Burden Shifts to Employer After Prima Facie

A

Once plaintiff shows prima facie case for discrimination, employer must articulate a LEGITIMATE NON-DISCRIMINATORY REASON (LNDR) for employment action that satisfied the BURDEN OF PRODUCTION.

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16
Q

IDT: Proving a Single Motive Case - Burden Shifts Back to Plaintiff to Show Pretext + Remember

A

The plaintiff must show the LNDR offered by defendant is not the real reason AND discrimination was the determinative factor in the decision

Remember: Showing LNDR is false DOES NOT compel a judgment for plaintiff as a matter of law, but prima facie + LNDR is false may be enough to convince a fact finder

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17
Q

Individual Disparate Treatment: Mixed Motive Case Description

A

This is a case wherein the employment action was taken due to BOTH PERMISSIBLE and IMPERMISSIBLE motives and involves a lower causation standard

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18
Q

IDT: Plaintiff Proving a Mixed Motive Case - Title VII

A

An unlawful employment action is established when a P has demonstrated that an impermissible reason was a MOTIVATING FACTOR in the decision. The SCOTUS held the plaintiff does NOT NEED direct evidence to make use of this framework

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19
Q

IDT: Defense of a Mixed Motive Case - Title VII + Remember Remedies

A

D has the opportunity to demonstrate by preponderance of the evidence that it would have made the SAME DECISION in the absence of the impermissible reason.

Remember: If a D carries out this burden, the court may grant declaratory relief, injunctive relief, attorneys fees and costs, BUT SHALL NOT AWARD damages, reinstatement, hiring, or promotion

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20
Q

IDT: Plaintiff Proving a Mixed Motive Case - ADA

A

Courts require a plaintiff to have DIRECT EVIDENCE that an impermissible reason was a motivating factor

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21
Q

IDT: Defense of a Mixed Motive Case - ADA

A

Same as Defense in Title VII - Employer may avoid liability by proving by a PREPONDERANCE OF THE EVIDENCE that it would have made the SAME DECISION absent the impermissible reason

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22
Q

Distinctions between Title VII and ADA in Mixed Motive Cases

A

When liability is established: Title VII - If plaintiff shows impermissible reason was a motivating factor by circumstantial or direct evidence, they can recover some damages

ADA - If plaintiff shows impermissible reason was
a motivating factor, employer has the opportunity to show same decision defense to completely bar recovery

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23
Q

Systemic Disparate Treatment Definition + Necessary Element

A

Systemic disparate treatment is where an employer discriminates against an ENTIRE CLASS of people.

Necessary Element: Intent

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24
Q

Two methods to prove SDT

A

1) Facially discriminatory policy (e.g. only women may be waitstaff)
2) Pattern or Practice of Discrimination (e.g. employer has 1% black employees in an 80% black area)

25
Q

SDT: Statutory Defense in Facially Discriminatory Policy + Remember Class Can Not Meet This Defense

A

Bona Fide Occupational Qualification (BFOQ): It is not unlawful for an employer to take action otherwise prohibited where age, sex, religion, or national origin is a BFOQ REASONABLY NECESSARY to the NORMAL operation of the PARTICULAR BUSINESS

Remember: Race is NEVER a BFOQ

26
Q

SDT: Elements to Prove a BFOQ Defense

A

1) Qualification is REASONABLY NECESSARY to normal operation of particular business, AND
2) Religion, sex, national origin, or age is A PROXY for the qualification by showing either (a) there is reasonable cause to believe all or near all of the persons in the class are UNABLE TO PERFORM SAFELY AND EFFICIENTLY duties of the job, OR (b) some employees in the class possess a trait PRECLUDING SAFE AND EFFICIENT JOB PERFORMANCE

27
Q

SDT: Ways to Prove a Prima Facie Case in a Pattern or Practice of Discrimination

A

Plaintiff must prove that employer’s standard operating procedure discriminates against a protected class through:

1) Statistics, BUT comparison group must be correct in GEOGRAPHY and SKILL
2) Anecdotal Evidence, or
3) Historical Evidence

28
Q

SDT: Defendant’s Rebuttal Options in a Pattern or Practice of Discrimination Case

A

1) Challenge the FACTUAL BASIS of the P’s prima facie case
2) Challenge the inference of discriminatory intent the STATISTICS raise
3) Assert a BFOQ, or
4) Avoidance of DISPARATE IMPACT LIABILITY (can ONLY be used when employer has a STRONG BASIS IN EVIDENCE that it would have been subject to disparate impact liability)

29
Q

SDT: Defendant’s Rebuttal Using Voluntary Affirmative Action - Weber Test

A

It is lawful to discriminate under Title VII if employer is using the WEBER TEST, which asks if the plan:

1) aims to REMEDY a manifest of imbalance,
2) in TRADITIONALLY SEGREGATED job categories, and
3) CANNOT UNDULY TRAMMEL the rights of disfavored groups

30
Q

Systemic Disparate Impact Discrimination Definition

A

An employer’s facially neutral policies, REGARDLESS OF INTENT, adversely affect a protected class more than others, and CANNOT BE ADEQUATELY JUSTIFIED

31
Q

DI: Plaintiff’s Prima Facie Case + Bottom Line Exception

A
  1. Protected class
  2. A particular employment practice (BOTTOM LINE EXCEPTION - If no specific practice can be determined, plaintiff can challenge the entire process to prove prima facie case)
  3. Results in disproportionate impact
  4. Causation between practice and impact
32
Q

DI: Defendant’s Options to Rebut Prima Facie Case + Business Necessity Test

A
  1. Business Necessity and Job Relatedness (TEST: the practice must accurately measure the applicant’s ability to perform successfully on the job)
  2. Section 703(h) Exceptions (professionally developed tests, bona fide seniority systems (BFSS), and bona fide merit and piecework systems)
33
Q

DI: Plaintiff’s Response to Defendant’s Rebuttal + Test

A

Plaintiff may show there is an ALTERNATIVE EMPLOYMENT PRACTICE which achieves the employer’s goals but does not have the DI

Test: An alternative employment practice is one that:

1) serves the same purpose as the contested practice,
2) but that is NOT DISCRIMINATORY, AND
3) is reasonable to expect the employer to use (includes costs)

34
Q

Types of Claims under Harassment

A

1) Quid Pro Quo (Tangible Employment Action)

2) Hostile Work Environment (Intangible Employment Action)

35
Q

Harassment: Define Quid Pro Quo

A

When sexual conduct is a condition of tangible employment benefits

36
Q

Harassment: Plaintiff’s Case in Quid Pro Quo + Remember If Defense is Possible

A

Plaintiff proves:

1) A SUPERVISOR,
2) made a SEXUAL DEMAND or advance to a SUBORDINATE (only works in sex-discrimination cases),
3) Plaintiff SUBMITTED to the demands OR suffered a TANGIBLE EMPLOYMENT ACTION

Remember: If plaintiff proves the claim, employer is vicariously liable and NO FORMAL DEFENSE EXISTS

37
Q

Harassment: Plaintiff’s Case in Hostile Work Environment + Severe and Pervasive Factors

A

Plaintiff must prove he or she was:

1) a member of a PROTECTED CLASS,
2) conduct was BECAUSE OF membership in the protected class,
3) show conduct was UNWELCOME (ONLY applies to gender claims, NOT race claims),
4) conduct was SEVERE AND PERVASIVE, and
5) Employer is liable (coworker v. supervisor)

Severe and Pervasive Factors:

  1. SEVERITY of the discriminatory conduct,
  2. FREQUENCY of the discriminatory conduct
  3. Whether the conduct is PHYSICALLY THREATENING OR HUMILIATING
  4. Whether it UNREASONABLY INTERFERES WITH PERFORMANCE at the workplace
38
Q

Harassment: Employer Liability - Supervisor v. Coworker

A

For hostile environments created by supervisor: The employer is vicariously liable BUT the employer has a two part affirmative defense if they can prove:

1) They used REASONABLE CARE to prevent and promptly correct harassment, and
2) The employee UNREASONABLY failed to use reporting procedures created by the employer

For hostile work environment created by co-worker: Employer will be held liable under a negligence standard if the plaintiff can prove:

1) the employer KNEW OR SHOULD HAVE KNOWN about the harassment, and
2) the employer FAILED TO TAKE PROMPT REMEDIAL ACTION

39
Q

Retaliation Definition

A

Employers may not be retaliated against for exercising their rights under the anti-discrimination statutes

40
Q

Retaliation: Plaintiff’s Prima Facie Case + Remember Opposition v. Participation

A

1) Plaintiff was engaged in statutorily protected expression
1a) Opposition Conduct: Behavior where the plaintiff is explicitly challenging, opposing, questioning, an employment practice by the employer (includes behavior NOT within the formal filing, plaintiff MUST DEMONSTRATE GOOD FAITH BELIEF that the conduct is unlawful, DOES NOT REQUIRE ACTIVE OPPOSITION)
1b) Participation Conduct: This type of claim involves behavior by the plaintiff within the FORMAL COMPLAINT STRUCTURE
2) Employer was AWARE of the conduct
3) Plaintiff SUFFERED ADVERSE EMPLOYMENT ACTION
4) There was a CAUSAL CONNECTION between the statutorily protected expression and the adverse employment action

41
Q

Retaliation: Defendant’s Rebuttal to Plaintiff’s Prima Facie Case AND Plaintiff’s Response+ Remember What Counts as LNDR

A

Once plaintiff has established a prima facie case, the burden shifts to defendant to articulate LNDR (McDonnell Douglas Framework)

If D is able to carry its burden of articulating some LNDR, the burden then shifts to the P to show the D’s LNDR was PRETEXTUAL for the actual discriminatory motive.

Remember: If the plaintiff’s opposition is UNREASONABLE (e.g. threatens to burn down workplace because of discrimination), this can be an LNDR for employer to take adverse employment action

42
Q

Particular Issues Under Title VII: Pregnancy - Definition

A

Pregnancy and related conditions MAY NOT be treated LESS FAVORABLY than other medical conditions (e.g. firing a pregnant woman who requires numerous sick days is NOT a violation of Title VII if other employees who require numerous sick days are also fired)

43
Q

Particular Issues Under Title VII: Pregnancy - Prima Facie Case

A

Similar to McDonnell Douglas:

1) Membership in protected class
2) Sought an accommodation
3) Employer refused accommodation
4) Employer accommodated others similar in their ability or inability to work.

44
Q

Particular Issues Under Title VII: Pregnancy - Defendant’s Rebuttal to Prima Facie Case + Remember Expense as an Excuse

A

Defendant must articulate a LNDR (which CANNOT be that accommodating pregnancy is more expensive).

45
Q

Particular Issues Under Title VII: Pregnancy - How Plaintiff Proves Pretext (Balancing)

A

Failure to accommodate is a SIGNIFICANT BURDEN on pregnant workers and the LNDR is NOT SUFFICIENTLY STRONG to justify the burden, giving rise to an inference of discrimination.

46
Q

Particular Issues Under Title VII: Grooming and Dress Code - Definition

A

Sex specific grooming and dress codes DO NOT IN ITSELF violate Title VII, UNLESS it IMPOSES AN UNEQUAL BURDEN on one sex

47
Q

Particular Issues Under Title VII: Sexual Orientation + Stereotypes Discrimination

A

In the past, sexual orientation was NOT COVERED, but some courts have held in the past that it is.

Stereotypes: Discrimination on the basis of stereotypes IS UNLAWFUL under Title VII

48
Q

Particular Issues Under Title VII: Religion + Reasonable Accommodation Definition

A

In addition to the general prohibition of discrimination of religion, an employer MUST ACCOMMODATE the religious practice or observance UNLESS an employer demonstrates he is unable to do so without UNDUE HARDSHIP.

Reasonable Accommodation: The employer does not need to select the employee’s proposed accommodation, as long as the accommodation allows the employee to engage in her observance or practice, the accommodation is reasonable

49
Q

Particular Issues Under Title VII: Religion - Plaintiff’s Prima Facie Case

A

1) Plaintiff holds a sincere religious belief that conflicts with a job requirement;
2) She informed employer of the conflict
3) She was disciplined for failing to comply

50
Q

Particular Issues Under Title VII: Religion - Defendant’s Rebuttal to Plaintiff’s Prima Facie Case + Statutory Defense + Undue Hardship Definition

A

Burden shifts to employer to show either:

1) Good faith effort to reasonably accommodate, OR
2) Any accommodation would act as an UNDUE HARDSHIP

Statutory Defense: The BFOQ defense IS AVAILABLE on the basis of religion

Undue Hardship Definition: Anything MORE THAN DE MINIMIS

51
Q

Particular Issues Under Title VII: Religion - Defendant’s Exemptions to Reasonable Accommodation + Remember Ministerial Exception

A

1) Religious organizations can discriminate for religion if connected to work carrying on the activities of such entity, and
2) Religious curriculum

Ministerial Exception: Courts have held that other discrimination may be exempt if it infringes on the Free Exercise rights (e.g. not allowing female ministers)

52
Q

Particular Issues Under ADEA: Statutory Defenses + Burden of Proof

A

1) Good Cause, and
2) Reasonable factors other than age (LNDR)

Burden of Proof: When raised in response to a DISPARATE IMPACT claim, the EMPLOYER has the burden of proof

53
Q

Defenses Available Under the ADA

A
  1. LNDR
  2. Undue Hardship (SIGNIFICANT difficulty or expense)
  3. Direct threat (SIGNIFICANT to the health and safety of others that cannot be eliminated by reasonable accommodation)
  4. Job-Related and Consistent with Business Necessity
54
Q

Particular Problems with Disability Discrimination: Drug or Alcohol Users

A

Although current drug users are excluded (current meaning drug use being sufficiently recent), the ADA DOES protect alcoholics and drugs addicts from discrimination

55
Q

Particular Problems with Disability Discrimination: Medical Examination and Inquiries

A

An employer MAY inquire into applicants ability to do the job and condition employment on the results ONLY IF all employees entering are subject to the medical exam

56
Q

Remedies: Limitations on Remedies

A

1) After-Acquired Evidence (don’t get front pay and reinstatement)
2) Same Decision Defense (no damages)

57
Q

Remedies: Legal Remedies + Remember Limits to This Remedy

A

1) Compensatory Damages (caps 15-100 employees = $50k, 101-200 emp. = $100k, 201-500 emp. = $200k, 501+ emp. = $300k)
2) Punitive Damages
3) Liquidated Damages (ONLY ADEA and cases of willful violations)

Limits: Limited to claims of intentional discrimination

58
Q

Remedies: Equitable Relief + Calculating Backpay

A

1) Reinstatement and Retroactive Seniority (seniority lost due to discrimination)
2) Affirmative Action Relief (class-wide)
3) Back-Pay (all compensation P would have received in the absence of discrimination)
4) Front Pay (compensates economic losses that WILL occur after judgement estimated by total future salary and benefits LESS mitigation efforts by plaintiff)
5) Attorney’s Fees to the prevailing fees

Calculating Backpay: Period begins when P first lost wages due to discrimination and ends on date of judgement or if employee rejects reinstatement, LESS mitigation earnings P could have earned (TWO YEAR LIMITATION PERIOD)

September 2020 Bar Exam (21 decks)

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