Employment Discrimination Primer Flashcards
9 Protected Characteristics Under Federal Law
[background]
- Age: 40+ years (Age Discrimination in Employment Act)
- Race: Title VII (Civil Rights Act of 1964) & 42 U.S.C. § 1981
- Color: Title VII & 42 U.S.C. § 1981
- Ancestry and/or national origin: Title VII (& maybe § 1981)
- Sex (gender): Title VII (current issue – does sex discrimination include sexual orientation discrimination)
- Pregnancy: added to Title VII by the Pregnancy Discrimination Act of 1978
- Religion: Title VII
- Medical condition and mental disability: Americans with Disabilities Act of 1990, as amended by the Americans with Disabilities Amendment Act of 2008
- Equal pay between males and females: added to the Fair Labor Standards Act by the Equal Pay Act of 1963
Overview of what Title VII does
[employment discrimination statutes: Title VII]
- Prohibits discrimination against employees on the basis of race, color, sex, national origin, and religion.
- Sec. 703(A)(1): “It is unlawful for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges or employment because of such individual’s race, color, religion, sex, or national origin.” - Created the Equal Employment Opportunity Commission (EEOC)
Small business exception
[employment discrimination statutes: Title VII]
It applies to employers with at least 15 or more employees. This includes all private and public employers.
Remedies
[employment discrimination statutes: Title VII]
In 1991, Title VII was amended to provide individual employees with a right to a jury trial (it previously only allowed bench trials)
It also provided the additional remedy of capped compensatory and punitive damages (the previous remedies were equitable only – injunctive relief, lost pay – backpay, front pay)
Administrative exhaustion
[employment discrimination statutes: Title VII]
To pursue a claim under Title VII, an employee must first exhaust her administrative remedies with the EEOC
Overview of the ADEA
[employment discrimination statutes: ADEA]
- Prohibits age discrimination
- Statute defines protected employee to be 40 years of age or older
- Covered employers: small business exception. Only applies to employers with 20 or more workers.
Overview of the ADA
[employment discrimination statutes: ADA]
- Prohibits discrimination against a disabled employee
2. Covers employers with 15 or more workers. This is similar to Title VII
Text of 1981
[employment discrimination statutes: 1981]
42 U.S.C. § 1981
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
Reasons an employee might prefer to file suit under § 1981, rather than Title VII
[employment discrimination statutes: 1981]
- No small business exception
- No caps on damages
- No requirement to exhaust remedies with EEOC
The reason Title VII was not rendered completely irrelevant by 1981
[employment discrimination statutes: 1981]
1981’s main focus is race discrimination.
The Court has interpreted race discrimination broadly allowing cases of discrimination based on ancestry or ethnic characteristics, race, or color.
Overview of 1983
[employment discrimination statutes: 1983]
In addition to the various federal statutory prohibitions against discrimination, the U.S. Constitution also provides a basis for bringing employment discrimination claims. Section 1983 provides workers with a basis for suing an employer under the Fourteenth Amendment.
Why 1983 is needed
[employment discrimination statutes: 1983]
Title VII applies to both private and governmental employers, but that is not true with all statutes. For instance, states and municipalities are not subject to suit under the ADEA
This is an alternative for public employees only
It doesn’t have an administrative exhaustion requirement, but it DOES provide certain defendants with government immunity – both absolute and qualified immunity depending on the official sued.
Main categories of discrimination claims
[proving a discrimination claim]
- Disparate Treatment (Individual & Systemic)
- Disparate impact
- Harassment (common examples: racial and sexual)
- Reasonable accommodation (disability and religion)
- Retaliation
Disparate Treatment (2 types)
[proving a discrimination claim]
- Individual
- When an employer intentionally treats an individual employee or applicant less favorable than another because of a protected characteristic
- The most common claim under Title VII
2. Systemic A. When an employer intentionally treats a group of people – rather than just one employee – less favorably than others based on a protected characteristic. Depending on the size of the group, it is possible to bring a class action lawsuit as a disparate treatment claim B. These cases are often proved with statistical evidence
Disparate Impact claims
[proving a discrimination claim]
- Involves a facially neutral employment practice which adversely impacts a protected class
- Proof of discriminatory intent not required
- The Court explained its meaning a bit in Griggs: “The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.”
