intro/the administrative process Flashcards

1
Q

what is title vii ? what does it prohibit

A

a statute that prohibits discrimination against employees on the basis of race, color, sex, national origin, and religion

It further prohibits retaliation against those who participate in a discrimination claim or oppose discrimination in the workplace

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

what is needed by an employer for them to be covered under title vii

A

they must employ at least 15 workers

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

what used to be the debate in the employment law world

A

whether employment discrimination should exsist as a theory

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

what is the debate surrounding employment law now?

A

the argument focuses on the appropriate scope and breadth of the laws, and how these laws should be interpreted

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

who created title vii

A

the eeoc

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

what does the EEOC stand for

A

equal employment opportunity commission

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

what are some other employment statutes

A

the age discrimination in employment act (ADEA)

Americans with disabilities act (ADA)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

what is the default rule in employment

A

employment at will

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

what is employment at will

A

You can be fired at anytime for any reason and you can leave anytime for any reason

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

what is the carved out exception for employment at will

A

employment discrimination claims

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

what do states do when title vii does not cut it?

give an example

A

A lot of states step in where federal law does not

ie like CA having marital status as a protected group

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

what does it mean to exhaust your administrative remedies

A

If you have a claim, you have to file a charge of discrimination with the EEOC if its a private employer, or the DOJ if its a public employer

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

how long do you have to file a charge with the EEOC

A

Title vii requires that an individual file a charge within 180 DAYS OF THE DISCRIMINATORY EVENT

If a state or local equivalent to the EEOC exists, you have 300 days from the day of the event

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What happens after you file a charge with the EEOC

A

The EEOC will conduct an investigation, and then issue a letter of determination

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

in a letter of determination what are the two levels of decisions

A
  1. there is a cause to believe that discrimination occurred or 2.there is not cause to believe that discrimination occurred
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

how does the EEOC triage the types of claims they get

A

“A” claims= those that are extremely strong and will be thoroughly investigated
“B” claims= charges that will require additional info to determine the validity
“C” claims= charges that typically have little merit or fail on the face of the claim itself

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

what must the EEOC do if it finds cause

A

it must engage in conciliation; This is an effort by the government to settle a discrimination charge before it reaches federal courts

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

what happens if the EEOC finds cause, and the efforts of conciliation fail

A

If conciliation fails, the EEOC must figure out whether or not to sue

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

if EEOC does not find cause what happens

A

they will still issue a right to sue letter

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

what are the factors the EEOC considers when deciding to sue (3)

A
  1. Pursue claims that are on the cutting edge of employment discrimination

2.Looks closely at cases where the facts are particularly egregious or where the discrimination has occurred company wide

  1. Also closely considers those cases that may implicate its enforcement authority
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

what happens when the agency does not file suit or does not find cause to believe that discrimination has occurred

A

it will issue what is known as a right to sue letter

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

how long after you get the right to sue letter do you have to sue?

A

90 days to file a complaint

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

if the EEOC decides to sue, what can the employee do

A

they can intervene

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

why would an employee want to intervne on an EEOC lawsuit

A

The government doesn’t have your interest in mind: they want to stop the discriminatory behavior, you probably want a payout

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

what is the key takeaway from National railroad?

On February 27, 1995, Morgan, a Black male, filed an EEOC charge against Amtrak, claiming he faced consistent racial harassment and harsher discipline than other employees. The EEOC issued a right to sue letter on July 3, 1996, and Morgan subsequently filed a lawsuit on October 2, 1996. While some alleged discriminatory acts occurred within 300 days of the EEOC charge, many happened earlier. Amtrak moved for summary judgment on incidents occurring more than 300 days before Morgan’s filing.

Issue: whether a title vii p may file suit on events that fall outside this statutory time period

A

As long as one contributing act occurs within the statutory time period to file a charge with the EEOC, the entire time period of the hostile environment may be considered by the court for the purposes of determining liability

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

how does the national railroad court define discrete acts vs continuing violations

A

discrete act: a discrete retaliatory or discriminatory act “occurred” on the day that it “happened.”

continuing violations: ie a hostile work environment; violations that occur over a series of days or years

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

what happens to acts that fall outside of the time alloted for discrete acts

A

they can be used as EVIDENCE but cant be tagged on

28
Q

what is needed to bring a claim under title vii

A

P must have standing and employer must be covered by the statute to bring a claim

29
Q

what factors go into determining if someone is an employee (5)

A
  1. Can organization hire/fire an individual?
  2. Extent that organization supervise the individual’s work?

3.Extent individual can influence the organization?

4.Did parties intend individual to be an employee?

5.Does individual share in profits, losses, and liabilities of organization?

30
Q

what is the key takeaway from clackmas

Wells worked as a bookkeeper at Clackamas, a medical clinic, from 1986 to 1997. After her termination, she sued the clinic for unlawful discrimination based on disability under Title I of the ADA. The clinic denied coverage under the ADA, claiming it had fewer than 15 employees, which is the statutory requirement.

issue:Whether four physicians actively engaged in medical practice as shareholders and directors of a professional corporation should be counted as “employees”?

A

the common law element of control is the principal factor to be followed in deciding whether the director-shareholder physicians should be counted as employees.

31
Q

what is the clackmas test (ie the factors determining if an employee/employer relationship exsists) 8

A

1.Employer has right to control when, where, and how worker performs job.
2. Work does not require high level of skill/expertise.
3.Employer furnishes tools, materials, and equipment.
4. Work performed on employer’s premises.
5. Continuing relationship between worker/employer.
6. Employer has right to assign additional projects.
7. Employer sets hours and duration of job.
8. Worker is paid by hour, week, or month.

32
Q

what is the key takeaway from Mariotti (spiritual awakening case)

Facts

P’s father started the company and P along with his brothers joined the family business

He served as secretary and vp

However, he had a spiritual awakening that caused negative reactions and harassment at work
The father died, and at his funeral P mentioned his new found spiritually

Two days later they fired P, but the letter said that his shares from the corpation would continue to be distributed to P

Even though he was fired, P still continued to serve as member on the board of directors until he was not re-elected

P filed a timely charge of religious discrimination and hostile work environment

issue: Whether the Clackamas test applies to business entities that are not professional corporations in a Title VII employment action ? if so was p an employee?

A

the clackmas test for determining employee-employer relationship applies in non title vii cases

Applying clackamas, since P had to a certain level of control and business decision making, P is not an employee

Even though he didnt have EXCLUSIVE CONTROL, that is not the only element in determining if someone is not an employee

33
Q

draw a flow chart for the adminstrative process for filing a claim

A

check your answer

34
Q

what happens if you miss the deadline to file your claim? is there a special carve out if the facts are particualry bad?

A

your case will be dismissed, no matter how bad the facts are

35
Q

when an employer is considering emplyoing an employee or independent contractor, what are the benefits of employee (ie full time worker)

A

More loyalty to company, and
Greater quality and quantity of work.

36
Q

when an employer is considering emplyoing an employee or independent contractor, what are the benefits of independent contractors

A

Allows employers to handle variations in workloads or economic conditions,
Employers can avoid giving benefits, and
Not covered by anti discrimination laws.

37
Q

after getting the right to sue letter, what does the complaint have to look like in an employment discriniation case?

A

must be a plausible claim to releif; ie“

a short and plain statement of the claim showing that the pleader is entitled to relief”

38
Q

what is the takeaway from Sorema

the age discrimination case

ISSUE: Whether a complaint in an employment discrimination lawsuit must contain specific facts establishing a prima facie case of discrimination under the framework set forth in McDonnell Douglas?

A

SCOTUS held that an employment discrimination complaint need not include specific facts establishing a prima facie case under the framework of McDonnell Douglas.

It must only contain “a short and plain statement of the claim showing that the pleader is entitled to relief” pursuant to FRCP Rule 8(a)(2).

39
Q

even though sorema tells us we dont need to plead all of the mcdonell framework in the complaint, whats a good rule of thumb to follow

A

to survive dismissal is to prove all four anyway, it helps insulate from dismissal

40
Q

what does sorema leave open for questions?

A

does not clarify exactly what a p must establish to survive a dismissal motion,

41
Q

is the mcdonell test an evidentiary standard or a pleading requirement, or both?

A

evidentary standard

42
Q

what is the key takeaway from Iqbal
Did respondent (Iqbal), as the plaintiff in the District Court, plead factual matter that, if taken as true, states a claim that petitioners deprived him of his clearly established constitutional rights?

A

SCOTUS held that Iqbal failed to plead sufficient facts to state a claim of unlawful discrimination.

The court reasoned that Iqbal needed to plead sufficient facts to show that the defendants implemented a policy of classifying post-September-11 detainees “of high interest” because of their race, religion, or national origin.

43
Q

what is discovery

A

Interrogatories, exchange of documents, deposition of witnesses

44
Q

why is the deposition of the p so important

A

As the victim they will have substantial information about the nature of the case and the perceived wrongdoing

45
Q

how is discovery important as it relates to the d

A

often target at uncovering evidence of the defendants potential intent or lack of intent

46
Q

what is e -discovery and what can it reveal?

A

Emails, texts, and other digital forms
Can reveal the bias of certain workers, and can quickly become a central piece of evidence in the case

47
Q

what is summary judgment, and usually will want to move for it

A

Have the case thrown out because no reasonable jury could find for the plaintiff
Common for the defendant (employer)

48
Q

what happens if p surrives summary judgment

A

employers will often attempt to settle a case

49
Q

which part is often the most critical part in an employment law case

A

summary judgment

50
Q

what percnt of employment cases actyaly make it to trial? whats the sucess rate for the p

A

about three percent, with a 60 percent sucesss rate for ps

51
Q

what is the key take away from may v chrysler group

A

that it is typical for the defense to challenge p and bring a viable defense for themselves

52
Q

how long do you have after a discrete act to file a claim

A

180-300 days after that act

53
Q

how long do you have after a continuing act to file a claim

A

180-300 days after the last act

54
Q

what happens if parites agree to arbitrate

A

they typically waive the right to go to federal court; instead a neutral decision maker is selected

55
Q

what kind of decsion is made in arbitration

A

a binding one

56
Q

are the rules stricter in arbitration

A

no they are less formal; its a less formal proceeding overall

57
Q

when should an arbitration agreement be signed and why

A

It is best to be signed at the beginning of employment when there is less doubt as to whether the element of consideration is satisfied

58
Q

what does the arbitration agreement have to do

A

compl with the federal arbitration act

59
Q

what is the speak out act

A

Act of Congress which prevents the enforcement of non-disclosure agreements in instances of sexual assault and harassment.

60
Q

what is the key takeaway from hooters

the one with an arbiration agreement skewed in favor of hooters so she couldnt sue
Whether a binding arbitration agreement between Phillips and Hooters exists and compels Phillips to submit her Title VII claims to arbitration

A

Hooters so skewed the process in its favor that Phillps has been denied arbitration in any meaningful sense of the word

An arbitration agreement may be rescinded if one party to the agreement has promulgated entirely one-sided arbitration rules and procedures.

61
Q

what does it mean to have a fair arbiration agreement

A

it must be netral and unbiased

62
Q

what is mediation

A

Mediation involves an attempt to settle the dispute informally between the parties.

63
Q

what is the mediator’s role/is thier decsion binding

A

A mediator does not have the authority to issue a binding decision. Rather, the mediator’s role is to attempt to resolve the matter informally between the parties.

64
Q

what do most jurisdictions require before a case will be put on a court’s docket

A

mediation

65
Q

draw road map of admin process

A

check