intro/the administrative process

Question 1

what is title vii ? what does it prohibit

Answer 1

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

Question 2

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

Answer 2

they must employ at least 15 workers

Question 3

what used to be the debate in the employment law world

Answer 3

whether employment discrimination should exsist as a theory

Question 4

what is the debate surrounding employment law now?

Answer 4

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

Question 5

who created title vii

Answer 5

the eeoc

Question 6

what does the EEOC stand for

Answer 6

equal employment opportunity commission

Question 7

what are some other employment statutes

Answer 7

the age discrimination in employment act (ADEA)

Americans with disabilities act (ADA)

Question 8

what is the default rule in employment

Answer 8

employment at will

Question 9

what is employment at will

Answer 9

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

Question 10

what is the carved out exception for employment at will

Answer 10

employment discrimination claims

Question 11

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

give an example

Answer 11

A lot of states step in where federal law does not

ie like CA having marital status as a protected group

Question 12

what does it mean to exhaust your administrative remedies

Answer 12

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

Question 13

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

Answer 13

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

Question 14

What happens after you file a charge with the EEOC

Answer 14

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

Question 15

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

Answer 15

1. there is a cause to believe that discrimination occurred or 2.there is not cause to believe that discrimination occurred

Question 16

how does the EEOC triage the types of claims they get

Answer 16

“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

Question 17

what must the EEOC do if it finds cause

Answer 17

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

Question 18

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

Answer 18

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

Question 19

if EEOC does not find cause what happens

Answer 19

they will still issue a right to sue letter

Question 20

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

Answer 20

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

3. Also closely considers those cases that may implicate its enforcement authority

Question 21

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

Answer 21

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

Question 22

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

Answer 22

90 days to file a complaint

Question 23

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

Answer 23

they can intervene

Question 24

why would an employee want to intervne on an EEOC lawsuit

Answer 24

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

Question 25

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

Answer 25

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

Question 26

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

Answer 26

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

Question 27

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

Answer 27

they can be used as EVIDENCE but cant be tagged on

Question 28

what is needed to bring a claim under title vii

Answer 28

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

Question 29

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

Answer 29

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?

Question 30

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”?

Answer 30

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.

Question 31

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

Answer 31

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.

Question 32

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?

Answer 32

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

Question 33

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

Answer 33

check your answer

Question 34

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

Answer 34

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

Question 35

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

Answer 35

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

Question 36

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

Answer 36

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

Question 37

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

Answer 37

must be a plausible claim to releif; ie“

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

Question 38

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?

Answer 38

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).

Question 39

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

Answer 39

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

Question 40

what does sorema leave open for questions?

Answer 40

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

Question 41

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

Answer 41

evidentary standard

Question 42

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?

Answer 42

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.

Question 43

what is discovery

Answer 43

Interrogatories, exchange of documents, deposition of witnesses

Question 44

why is the deposition of the p so important

Answer 44

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

Question 45

how is discovery important as it relates to the d

Answer 45

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

Question 46

what is e -discovery and what can it reveal?

Answer 46

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

Question 47

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

Answer 47

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

Question 48

what happens if p surrives summary judgment

Answer 48

employers will often attempt to settle a case

Question 49

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

Answer 49

summary judgment

Question 50

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

Answer 50

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

Question 51

what is the key take away from may v chrysler group

Answer 51

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

Question 52

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

Answer 52

180-300 days after that act

Question 53

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

Answer 53

180-300 days after the last act

Question 54

what happens if parites agree to arbitrate

Answer 54

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

Question 55

what kind of decsion is made in arbitration

Answer 55

a binding one

Question 56

are the rules stricter in arbitration

Answer 56

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

Question 57

when should an arbitration agreement be signed and why

Answer 57

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

Question 58

what does the arbitration agreement have to do

Answer 58

compl with the federal arbitration act

Question 59

what is the speak out act

Answer 59

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

Question 60

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

Answer 60

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.

Question 61

what does it mean to have a fair arbiration agreement

Answer 61

it must be netral and unbiased

Question 62

what is mediation

Answer 62

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

Question 63

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

Answer 63

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.

Question 64

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

Answer 64

mediation

Question 65

draw road map of admin process

Answer 65

check