Exam 2 (Chapters 4-6)

Question 1

Disparate Treatment (Pretext)

Answer 1

Plaintiff must establish a prima facie case by showing: (a) the protected class characteristic(s) of the plaintiff that are relevant to the case; (b) that the employment opportunity was applied for; (c) that the employment opportunity was available; (d) that the plaintiff was qualified for the employment opportunity; (e) that the plaintiff was denied the employment opportunity; (f) that the employer continued to consider candidates for the employment opportunity or selected someone with contrasting protected class characteristics.

Question 2

Disparate Treatment (burdens of proof)

Answer 2

The plaintiff bears the ultimate burden of proof that the employer intentionally discriminated. If the plaintiff successfully establishes a prima facie case, the employer is required to “produce” evidence of a lawful motive for the employment decision. If the employer successfully produces such a motive, the plaintiff has the opportunity to rebut the employer’s claim by: (a) providing evidence that sheds doubt on the credibility of the employer’s claimed motive; and/or (b) providing other evidence which supports the claim that a discriminatory motive is the most likely explanation for the employer’s decision.

Question 3

Adverse Impact (Disparate Impact) elements of a claim

Answer 3

Plaintiff must establish a prima facie case of adverse impact by showing that: (a) a neutral employment requirement or practice has the effect of disproportionately limiting the employment opportunities of a protected class group (e.g., women, Latinos) of which the plaintiff is a part; and (b) the difference in outcomes across protected class groups is large enough that it is unlikely to exist by chance. If the plaintiff successfully establishes a prima facie case, the employer must prove that the challenged employment requirement or practice is “job related and consistent with business necessity.” In age discrimination cases, the employer must defend use of the challenged employment requirement or practice by showing that it is a “reasonable factor other than age.” If the employer successfully defends the requirement or practice, the plaintiff can still prevail by showing that a feasible alternative exists that would have less discriminatory impact and the employer nonetheless refuses to adopt it (but not in age discrimination cases).

Question 4

Disparate Treatment (Direct Evidence)

Answer 4

Rare - “smoking gun”
Includes cases of “mixed motives”
Title VII requires that employer have 15 or more employees.

Question 5

Disparate Treatment (Facially Discriminatory Policy or Practice)

Answer 5

Employer admits to using protected class criteria, but insists that there is a sound business reason. Southwest Airlines only hiring women as flight attendants. BFOQ defense is narrow.

Question 6

Disparate Treatment (Reverse Discrimination)

Answer 6

Misnomer. Employer does not deny that race or sex played some part in hiring, but contends that the decision was made in accordance with a lawful affirmative action plan.

Question 7

Disparate Treatment (Pretext 2)

Answer 7

Difficult concept to prove. Proving employer’s dishonesty or untruthfulness of stated motive - using circumstantial evidence. Stated reason v. real reason. Underlying premise = employer decision made for EITHER discriminatory reason OR a lawful reason.

Question 8

Disparate Treatment (Mixed Motives)

Answer 8

Both a discriminatory decision AND a lawful reason. More than one motive. Plaintiff’s award may be minimized if employer can prove that same decision would have been made absent the discriminatory motive, i.e., the lawful motive was strong enough by itself to prove the same result.

Question 9

Disparate Treatment (Pattern or Practice)

Answer 9

Instead of an individual case, there is intentional discrimination that is systematic and affects numerous employees. Often involves use of statistical data to prove intent.

Question 10

Disparate Treatment (Harassment)

Answer 10

Treated as a form or disparate treatment.

Question 11

Price Waterhouse (Discrimination)

Answer 11

We hold that when a plaintiff in a Title VII case proves that her gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff’s gender into account. We conclude that Congress meant to obligate her to prove that the employer relied upon sex-based considerations in coming to its decision. Dr. Susan Fiske, a social psychologist and Associate Professor of Psychology at Carnegie-Mellon University, testified at trial that the partnership selection process at Price Waterhouse was likely influenced by sex stereotyping.

Question 12

Griggs (Discrimination)

Answer 12

Under the Civil Rights Act of 1964, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to “freeze” the status quo of prior discriminatory employment practices. The Company has not made a showing that the requirement of advancement fulfill a genuine business need. Congress has placed on the on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question. What Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance. Any tests used must measure the person for the job and not the person in the abstract.

Question 13

Bona Fied Occupational Qualification Defense (BFOQ)

Answer 13

Section 703(e) of Title VII provides it is not unlawful for an employer to differentiate in hiring on the basis of religion, sex, or national origin “in those certain instances where religion, sex, or national origin is a bona fied occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.

Question 14

Retaliation (elements of a claim)

Answer 14

Plaintiff must establish a prima facie case of retaliation by showing that: (a) the plaintiff engaged in protected activity (i.e., participated in enforcement procedures or otherwise used reasonable means to oppose discrimination); (b) the plaintiff suffered a loss or limitation of employment opportunity; and (c) there is a casual link between engaging in the protected activity and the loss or limitation of employment opportunity. If the plaintiff successfully establishes a prima facie case, the employer has the opportunity to produce evidence of a lawful, non-retaliatory motive for the employment decision. If the employer articulates a lawful, non-retaliatory motive, the plaintiff has the opportunity to rebut the employer’s claim by: (a) providing evidence that sheds doubt on the credibility of the employer’s claimed motive; and/or (b) providing other evidence which supports the claim that retaliation is the most likely explanation for the employment decision. Reasonable Belief: (1) oppose discrimination, (2) participate in enforcement procedures.

Question 15

Yanowitz (retaliation)

Answer 15

We agree with Yanowitz that when the circumstances surrounding an employee’s conduct are sufficient to establish that an employer knew that an employee’s refusal to comply with an order was based on the employee’s reasonable belief that the order is discriminatory, an employer may not avoid the reach of the FEHA’s anti-retaliation provision by relying on the circumstance that an employee did not explicitly inform the employer that she believed the order was discriminatory. Thus, we conclude that Yanowitz presented sufficient evidence to satisfy the protected activity element of her prima facie case.

Question 16

Ricci (affirmative action)

Answer 16

We hold only that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action. There is no strong basis in evidence to establish that the test was deficient in either not job related and consistent with business necessity, nor if there existed an equally valid, less discriminatory alternative that served the City’s need but that the City refused to adopt. But its hearings produced no strong evidence of disparate-impact violation, and the City was not entitled to disregard the tests based solely on the racial disparity in the results.

Question 17

Title VII (Religion)

Answer 17

Title VII defines “religion” as “all aspects of religious observance and practice, as well as belief.” An employer’s responsibility is to reasonably accommodate an employee’s religion unless it places and undue hardship on the employer.

Question 18

1st Amendment (Religion)

Answer 18

Prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion.

Question 19

Fragante (national origin)

Answer 19

Title VII does not stand for the proposition that a person in a protected class – or person with a foreign accent – shall enjoy a position of advantage thereby when competing for a job against others not similarly protected. And, the record does not show that the jobs went to persons less qualified than Fragante: to the contrary. An employer’s decision may be justifed by the hired employee’s superior qualifications unless the purported justification is a pretext for invidious discrimination. In this case, there is simply no proof whatsoever of pretext, and we do not find the district court’s finding of “no discrimination” to be clearly erroneous. In sum, the record conclusively shows that Fragante was passed over because of the deleterious effect of his Filipino accent on his ability to communicate orally, not merely because he had such an accent.

Question 20

“English only” rules

Answer 20

EEOC normally forces employer to provide a justification for English-only policies. Must be a BFOQ but is really unlikely to be upheld.

Question 21

Age Discrimination in Employment Act (ADEA)

Answer 21

Prohibits age discrimination in the employment, discharge, promotion, or treatment of persons over the age of 40. Originally protected ages 40-65.

Question 22

ADEA Exceptions

Answer 22

The ADEA contains several notable exceptions to the prohibition against age discrimination. For
example, although mandatory retirement policies generally constitute a violation of the ADEA,
the statute permits employers to establish compulsory retirement for a bona fide executive or high
policymaker who has reached age 65 and is entitled to a pension benefit of at least $44,000. Under one prominent exception, an employer will not be deemed to have violated the act when
the action taken against an employee is due to a “bona fide occupational qualification [BFOQ]
reasonably necessary to the normal operation of the particular business.”32 According to the
Supreme Court, the BFOQ must be more than “convenient” or “reasonable,” but must be
“‘reasonably necessary … to the particular business.’”33 Under this narrow interpretation, an
employer must justify an age-based employment requirement by demonstrating (1) that the
requirement is reasonably necessary to the essence of its business, and (2) that an individualized
approach would be pointless or impractical. The second prong of this test can be established in
one of two ways. First the employer may show that it had a factual basis for believing that
persons over a certain age would be unable to perform the job safely. In the alternative, the
employer may show that “age was a legitimate proxy for the safety-related job qualifications by
proving that it is ‘impossible or highly impractical’ to deal with the older employees on an
individualized basis.”34 Although employers have attempted to use the BFOQ defense in a wide
variety of occupations, job-related age requirements have tended to be more successful when the
position in question, such as airline pilot or law enforcement officer, may affect public safety.

Question 23

Americans with Disabilities Act (ADA) definition of disability

Answer 23

The ADA prohibits discrimination against a “qualified individual with a disability,” defined as someone who, “with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” The ADA further provides that an employer is not permitted to use a qualification standard that tends to screen out an individual with a disability unless it “is shown to be job-related for the position in question and is consistent with business necessity. The term “qualification standards” may include that an individual shall not pose a direct threat to the health and safety of other individuals in the workplace. It defines “direct threat” to include the affected individual, as well.

Question 24

ADA 2008 Amendments

Answer 24

The Amendments were called ADAAA. Was enacted to overturn the Supreme Court Decisions that narrowly interpreted the definition of an individual with a disability. The definition of a disability is this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act. The ADAAA provides that “the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures. Result would still be the same in the eyeglasses Sutton case. However, the doctrine established by the Sutton case was overturned.