Must Know Element, Damages, Limitations & Tests

Question 1

Scenario requires bringing a claim under the Employee Polygraph Protection Act (EPPA), list the following:

Threshold issue of who it applies to?

Statute of Limitations

Does Preemption apply?

What is a Violation of this Statute?

Any exceptions or defenses?

Damages (Including Fines or Employee recovery.)

Answer 1

COVERED - Private Employers engaged in COMMERCE - Bars most private employers from using lie detectors either for preemployment screening or DURING the courtse of employment.

EXEMPTIONS:

All public sector employers are exempt

Federal government permitted to test private-sector employees who have access to classified information

Testing of members of intelligence services allowed

Federal testing of FBI contractors allowed

Testing allowed when drugs are involved

Private employers conducting ongoing investigation involving economic loss or injury allowed (e.g. theft, embesslement) BUT Employer cannot RANDOMLY test to see if thefts have occurred

Private employers involved in security services allowed to test applicants

Statute of Limitations: 3 years

Preemption: Any state or local law or CBA that is MORE RESTRICTIVE is not preempted.

Fine: Up to $10,000 per violation

Employee Remedies:

Legal or Equitable relief;

being hired, reinstated, or promoted;

lost wages and benefits; and

costs and attorney fees

Question 2

Discrimination - How many types of claims under Title VII

Threshold issue of who it applies to?

Statute of Limitations

Does Preemption apply?

What is a Violation of this Statute?

Any exceptions or defenses?

Damages (Including Fines or Employee recovery.)

Answer 2

5 types of Claims

1. Disparate Treatment (intentional) - Individual
2. Disparate Treatment (intentional) - Systematic
3. Disparate Impact (neutral policy but when applied is discriminatory)
4. Hostile Work Environment/Harassment
5. Retaliation

Threshold Issue of who it applies to?

• Private employer with 15 or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year
• Public Employer (regardless of size)
• Employment Agencies
• Unions
• Federal employees

Doesn’t apply to:

• No U.S. Govt.
• No individual liability (different then 42 USC 1983)
• Corporation owned by US Govt
• Indian tribe
• bonafide membership club
• some churches
• synogogues
• other relgious organizations

Statute of Limitations

File Claim with TWC - 180 days (State and Federal claims)

File Claim with EEOC - 300 days (if filing in Federal Court, fed. claims)

*90 Days to sue after receiving “Right to Sue” Letter from EEOC

Does Preemption apply?

? Both Federal and State Claims can exist I think

What is a Violation of this Statute?

Unlawful 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 of employment, because of such individual’s race, color, religion, sex (including pregnancy or gender identity) or national origin or to limit, segregate or classify or to cause or attempt to cause an employer to discriminate against an individual in violation of this section.

Any exceptions or defenses?

Damages (Including Fines or Employee recovery.)

Question 3

How do I prove Disparate Treatment (Individual) under Title VII?

Question 4

How do I prove Disparate Treatment (Systematic) under Title VII?

Question 5

How do I prove Disparate Impact discrimination under Title VII?

Question 6

How do I prove Hostile Work Environment/Harassment under Title VII?

Question 7

How do I prove Retaliation under Title VII?

Question 8

How does Title VII claims compare to Texas claims for Discrimination?

How do I bring a Texas claim for discrimination?

Question 9

Rehabilitation Act of 1973

Threshold issue of who it applies to?

What is its purpose?

How does someone bring a claim under this Act?

What extra measures exist for those applicable under this provision?

Answer 9

Threshold and Purpose: The Rehabilitation Act prohibits discrimination on the basis of disability in programs conducted by

• Federal agencies,
• Recipients of federal funds,
• Federal contractors.

SAME AS IN TITLE 1 of the Americans with Disabilities Act. The standards for determining employment discrimination under the Rehabilitation Act are the same as those used in title I of the Americans with Disabilities Act.

Bring a claim under this Act?

-Employee should invoke the Rehabilitation Act of 1973 and file with the EEOC.

What extra measures exist for those appliable under this provision?

-Federal employers and federal contractors (providing goods, services or construction) may need to have an affirmative action plan.

What defense exist?

Question 10

Americans with Disabilities Act (As Amended) - How many claims are there?

Threshold issue of who it applies to?

Statute of Limitations

Does Preemption apply?

What is a Violation of this Statute?

Any exceptions or defenses?

Damages (Including Fines or Employee recovery.)

Answer 10

Americans with Disabilities Act (As Amended) - How many claims are there?

1. Disability Discrimination - Proven by DIRECT EVIDENCE or NOT DIRECT EVIDENCE (Requires burden shifting analysis)
2. Hostile Work Environment/Harassment
3. Failure to Provide a Reasonable Accomodation and engage in the interactive process
4. Interference Claim
5. Retaliation

Threshold issue of who it applies to?

PURPOSE: Enacted to fill the large gap of the Rehabilitation Act of 1973 (only applies to Federal Gov.’t [US Postal Service], Entities receiving federal financial assistance, and federal contractors) to allow for Disability Discrimination coverage for Private Employers and Non-Federal Government Workers

covered entity private business with 15 or more employees for 20 or more calendar weeks in a year or a preceding year, state and local government (regardless of size), employment agencies, and unions & engaged in commerce

-Exclude the United States, a corporation solely owned by the US, an Indian tribe, bonafide private membership club, some churches, synogogues and other religious organizations.

FEDERAL EMPLOYEES - The ADA’s nondiscrimination standards also apply to federal sector employees under section 501 of the Rehabilitation Act, as amended, and its implementing rules. Those employees should invoke the Rehabilitation Act.

is a person with a disability (physical or mental Impairment) which substantially limits one or more major life activities, a record of such impairment or being regarded as having such impairment.

Statute of Limitations

180 days under Texas Commission of Human Rights Act

300 days if Federal Claims under the ADAAA

Does Preemption apply? Not necessarily. Texas State Claims exist under Texas Commision of Human Rights Act. Also there may be claims for federal employees, federal contractors with Section 501 of the Rehabilitation Act and the employees should invoke that act.

What is a Violation of this Statute?

Any exceptions or defenses?

UNDUE HARDSHIP - An employer does not have to provide a reasonable accommodation if it imposes an “undue hardship.” Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer’s size, financial resources, and the nature and structure of its operation.

Damages (Including Fines or Employee recovery.)

Whenever discrimination is found, the goal of the law is to put the victim of discrimination in the same position (or nearly the same) that he or she would have been if the discrimination had never occurred.The types of relief will depend upon the discriminatory action and the effect it had on the victim.

-Reinstatement – Placement back in the Job

-Backpay and Benefits they would have received

-Employer may need to take Remedial Measures

-Attorney Fees

-Expert Fees, Witness Fees and Costs

Question 11

Is there a retaliation claim under the Americans with Disabilities Act?

If so, what is the prima facie case and the causation standard?

Answer 11

Yes,

RETALIATION Claim Prima Facie Case:

(1) she engaged in an activity protected by the ADA;
(2) an adverse employment action occurred; and
(3) a causal connection exists between the protected act and the adverse action.

Credeur v. State of Lousiana (5th Cir. 2017); Seaman v. CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999).

**NO MIXED MOTIVE CAUSATION – USE BUT FOR as discussed above

“BUT FOR” CAUSATION - Under the ADEA and ADA, it is clear that the plaintiff must prove that “but for” the employer’s discriminatory motive, the adverse action would not have been taken — therefore, no damages are recoverable under the ADEA or ADA in a mixed motives case where discrimination was not the primary reason for the employer’s decision.

Question 12

Any fact scenario showing a witholding of accrued vacation benefits, holiday pay or improvement of healthcare benefits and reduction in co-pay/co-insurance where the benefits are provided to non-strikers and not strikers. What happens to determine if there was a violation of the National Labor Relations Act?

Answer 12

NLRB v. Great Dane Trailers, 388 US 26 (1967) TEST (and followed by Texaco Inc. decisions where NLRB applied Great Dane Test)

Holding: Board found that employer violated Section8(a)(3) of the Act by withholding vacation benefits from striking employees while at the same time announcing that it intended to pay those benefits to nonstrikers.

Reasoning: The act of paying accrued benefits to one group of employees while announcing the extinction of the same benefits for another group of employees who are distinguishable only by their participation in protected concerted activity surely may have a discouraging effect on either present or future concerted activity.

TEST: General Counsel bears the burden of proving at least some adverse effect of the benefit denial of employee’s Section 7 rights “discriminatory conduct which could have adversely affected employee rights to some extent” (Ex. Meeting the burden that the benefit was accrued and it was apparently withheld on the basis of the strike)

Burden shifts to Employer - to show that its conduct was motivated by SUBSTANTIAL AND LEGITIMATE BUSINESS OBJECTIVES. (Is there any evidence in the record?)(explicit waiver by the Union or reliance on a nondiscriminatory contract interpretation that is reasonable and arguably correct)

**IF THE EMPLOYER ESTABLISHES BUSINESS JUSTIFICATION, the Board may still find that the employer has committed an unfair labor practice if the conduct is demonstrated to be “INHERENTLY DESTRUCTIVE” of imporatnat employee rights or motivated by antiunion intent.

****SAFE HARBOR- There may still be a safe harbor where employer POSTPONES the benefits to strikers but the Employer makes clear to the affected employees that the adjustement will occur WHETHER OR NOT THEY SELECT A UNION and that the sole purpose of postponement is to avoid the appearance of improperly trying to influence the elections’ outcome. Although recently in Woodcrest Healthcare Center (2018) the NLRB said even if the employer had withheld the benefit improvements in order to maintain status quo and avoid impacting the election or exposing itself to potential unfair labor practice charges, NLRB would not find that to be a legitimate justification.

Question 13

If an employee wants to bring a claim against an employer for hiring someone permanently to take over their job when they joined a strike, what law to be aware of to know if the employee has a claim to stand on?

Is there a TEST to apply?

Answer 13

When a Strike occurs, an employer can:

Use Supervisors and other Non-Bargaining Unit Personnel

It may Hire Temporary Replacements (Employees who work for the duration of the stike but who must be displaced when strikers, or the union on their behalf, request to return to work.

An Employer may hire PERMANENT Replacements for strikers ONLY IF the Strike was NOT CAUSED OR PROLONGED by Employer unfair labor practicies. BECAUSE an employer MAY NOT hire PERMANENT REPLACEMENTS during an unfair labor practice strike then employers have a powerful incentive to ensure that its bargaining practices comply with statutory requirements. When the strike is over or when a strike requests to return to work, the Employer is NOT REQUIRED to immediately reinstate a permanently replaced economic striker. Rather, he or she is to be placed on a preferential recall list, eligible for reinstatement as vacancies arise. A permanently replace strike REMAINS AN EMPLOYEE and retains reinstatement rights until full reinstatement is achieved or until he or she accepts substantially equirvalent employment elsewhere.

PIEDMONT GARDEN TEST - MOTIVE BASED ANALYSIS (2016)

Rule - Employer cannot permanently replace strikers in an unfair labor practice strike (It is labeled unfair labor practice strike if it is caused or prolonged by an employer unfair labor practice). The unfair labor practice need NOT be the SOLE cause of the strike, only a contributing cause. Test looks at subjective and objective considerations, NLRB looks at whether employees are aware of the unfair labor practices, their reaction, the seriouness of the unlawful act and the relationship of the unfair labor practice to the bargaining disputes between the parties.

Ex. striker’s picket signs and leaflets mention the unfair labor practice, testimony that union officials told bargaining unit members of the unlawful acts before employees voted to strike, employee’s knew of the unfair labor practice and voted to strike in protest, timing of striking right after discharge of union supporter, but even NLRB has held a strike 13 months after employer illegally changes wages without bargaining held unfair labor practice strike.

Question 14

What test is used for verbal threats by strikers?

Answer 14

Generally, striking is a protected activity by the Statute NLRA, striking activity that:

• causes physical violence or
• serious property damage

are outside the scope of the statute’s protection.

VERBAL THREATS - NLRB’s CLEAR PINE MOULDINGS TEST - Asks whether the misconduct MAY REASONABLY TEND TO COERCE OR INTIMIDATE EMPLOYEES IN THE EXERCISE OF THEIR STATUTORY RIGHTS. If the test is met, the misconduct is UNPROTECTED and the employer may lawfully discipline or discharge stikers engageing in such activity. OBJECTIVE TEST.

Question 15

Can a discharged permanent replacement bring a cause of action against the Employer?

Answer 15

Yes, in Belknap v. Hale, the US Supreme Court held that the Railway Labor Act does not reempt state law based lawsuits brought by discharged permenent replacements alleging breach of contract and misrepresentation. Thus a permanent striker replacment who is displaced by a returning striker, wehther due to a settlement agreement or NLRB order, may have a cause of action against eh employer depending on the promises made and the availability of the cause of action under applicable state law. TO AVOID SUCH PROBLEMS, employers often advise replacements taht their permanent status is subject to specific conditions such as NLRB settlement agreements, NLRB orders to reinstate strikers or strike settlement agreements.

Question 16

In an extreme circumstance where a striker engages in serious misconduct, during the strike, for example, two employees accused of threatening to dynamite company property, what can an employer do?

What test is used?

Answer 16

An employer MAY be able to discharge the employee because the serious misconduct may go beyond the scope of protected activity and be subject to discharge by the employer.

Employer must be very careful or it could (1) unlawfully discharge causing damages for backpay and reinstatement (2) unlawfully discharge causing an economic strike to be converted to an unfair labor practice strike and eliminate the employer’s ability to hire permanent replacements

The standard of proof for determining the lawfulness of a discharge for misconduct is set forth in the US Supreme Court NLRB v. Burnup & Sims Inc., Court state,

General Counsel –> Must prove the dicharge OR refusal to reinstate was ILLEGALLY based on the striker’s protected activity. First, that striker striker was discharged or refused reinstatement for strike related conduct,

BURDEN SHIFTS - to the Employer to demonstrate “an honest belief” that the striker committed misconduct. TO prove this, employer must demonstrate “some specficificity in the record, linking particular employees to particular allegations of misconduct”

Geveral Counsel - If employer demonstrates an honest belief, the General Counsel must establish either that the striker was not guilty of the misconduct in question or that the misconduct was not serious enough for discharge or denial of reinstatement.

EXAMPLE: In Burnup & Sims case, the employees were found innocent of the charges and the Court held that GOOD FAITH was not a defense if the alleged misconduct HAD NOT OCCURRED. NOTE THAT - Acts of physical violence and serious property destruction are outside the protection of the Act and are often regarded as seriou enough to justify discharge. The US Supreme Court things to allow that would be “To justify such conduct because of the existence of the labor dispute or of an unfair labor practice would be to put a premium on resort to force instead of legal remedies and to subvert the principles of law and order which lie at the foundations of society.”

Question 17

What if the employee makes verbal threats unaccompanied by physical acts?

What test will NLRB apply?

Objective of Subjective?

Answer 17

NLRB applies Clear Pine Mouldings, Inc. Test

To determine whether the verbal threats justify discharge or a refusal to reinstate,

Under the circumstances existing, it may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act.

In Clear Pine, strikers had threatened but did not attack a nonstriker in the context of a strike which had also included strikers that were swinging clubs at replacements, beating on vehicles and carry baseball bats. Board HELD: some verbal abuse did not warrant protection and that an employer did not need to allow misconduct that amoutns to intimidation and threats of bodily harm. ***NOTE: Objective Test under the circumstances, would the reasonable action tend to coerce or intimidate an individual faced with such conduct. IT DID NOT HAVE TO IN FACT COERCE OR INTIMIDATE.

**OBJECTIVE TEST

Clear Pine Board -stated that the Court must have recognized that Congress intended for minor acts of misconduct when it provided for the right to strike. So namecalling, even if profane in nature, is not likely to be adequate cause for discharge (if not accompanied by threats of violence or property damage)

Question 18

Fact Scenario: Satellite television technicians contacted TV Station and were interviewed on camera regarding their wage dispute and their beliefs that they were being asked to lie to customers.

Protected under the NLRA?

What test is used?

Answer 18

**If employee communications are related to an ongoing labor dispute, they maybe protected.

Board developed a two-part test to determine the line between protected activity and such “Detrimental Disloyalty” that would permit discharge. Test asks (1) if the communication indicated it is related to an ongoing labor dispute and (2) whether the statements were “so disloyal, reckless or maliciously untrue as to lose the Act’s protection.

DirectTV Inc. v. NLRB (DC Cir. 2016) Court upheld Board order that technicians be reinstated because no evidence that technicians intended for consumers to cancel their srvice nor asked them to do so.

Question 19

Can an employer get an injunction in a Texas State Court for strikers?

What is the issue?

What must be proven?

Answer 19

PREEMPTION

Although the NLRA generally preempts state law - Courts allow states to regulate the conduct “deeply rooted in local feeling and responsibility and of merely peripheral concern to the federal labor laws.”

States have strong interest in preventing violence - So state courts have been allowed to enjoin picketing invovling violence or the threat of violence, mass picketing, obstructing public streets or plant netrances, and intimidation. ***Such injunction will be governed by state law and may be subject to state statutory provisions setting forth particular proof standards that must be met.

To obtain an injunction in the State of Texas, you must prove:

_____________________________

**Injunctions that enjoin acts of violence and limit the numbr of pickets and locations for picketing have generally avoided preemption problems. If strike relatd violence and other unlawful acts continue after issuance of an injunction, the union may be exposed to significant penalties for cirminal or civil contempt.

Question 20

What type of civil suits can be brought related to Employer or Union/Union employee behavior?

State or Federal Law applies?

Answer 20

Employers can bring PERSONAL INJURY and PROPERTY DAMAGE lawsuits for damages they have suffered during the labor dispute.

PREEMPTION - States are NOT PREEMPTED from granting “compensation for the consequences, as defined by the traditional law of tors, of conduct marked by violence and imminent threats to the public order.”

-Suits can be brought against individual union members for their tortious acts BUT if brought in Federal Court - MUST BE “CLEAR PROOF” that the union approved of, actively participated in or knowingly tolerated the unlawful acts.

***DEFAMATION - Supreme Court has held that federal labor law DOES NOT preempt a State Court libel action, however the federal labor law may protect “vehement, caustic and sometimes unpleasant sharp attack” and that such immunity can be lost only if the speech is made with KNOWLEDGE OF ITS FALSITY OR RECKLESS DIREGARD OF WHETHER IT IS TRUE OR FALSE. In practice, most statements made in a labor dispute will be considered PROTECTED SPEECH.

**DANGER OF FILING SUIT - filing a frivilous suit (in context of labor dispute) or maintaining suit after clear it lacks merit - CAN BE AN UNFAIR LABOR PRACTICE if suit is brought or maintained to retaliate against strike activity. Ex. suit against unions and members for signs calling company and president “scabs” violated NLRA, suit describing officer of company as “Hitler” or “Gestapo” not basis for defamation claim.

Question 21

When is it ever appropriate to bring a claim against a Union for strike related violence and what must be proven?

Answer 21

ACT VIOLATION: Section 8(b)(1)(A) - Makes it an unfair labor practice for union to “RESTRAIN OR COERCE EMPLOYEES IN THE EXERCISE OF RIGHTS GUARANTEED UNDER SECTION 7”

Facts amounting to Unfair Labor Practice:

• violence, intimidation, reprisals or threats against employees not joining Union
• violence against management, supervisors and others (on the grounds that employees are likely to hear of such violence and be threatened by it.

Union to be held Responsible: MUST BE PROOF THAT Union Officials AUTHORIZED, PARTICIPATED IN OR RATIFIED THE VIOLENCE

Ex. Evidence could be presence of Union agents on th picket line when misconduct occurs or the Union’s failure to take steps to end the violence after it has knowledge of it.

*If a Union continues to violet a Board cease and desist order after it has been enforced by court of appelas, it can be held LIABLE FOR CONTEMPT (Union showed tolerance of continued violence when it was aware of continuing misconduct and took not steps to prevent it; contempt finding upheld)

Question 22

What is the prima facie case under the ADAAA for a Plaintiff bringing a discrimination claim?

Is there a claim in Texas for disability discrimination, what Act is it under and how is it different?

Answer 22

Prima Facie Case under the ADA requires a Plaintiff to show, that he

(1) has a disability
(2) was qualified for the job (*Perform the Essential Functions of the Job in spite of her disability OR she could do so with an identified “Reasonable accomodation of her disability”
(3) was subject to an adverse employment decision BECAUSE of his disability

Shirley v. Precision Castparts Corp. (5th Cir. 2013)

TEXAS - Yes, there is a disability discrimination claim under the Texas Commission of Human Rights Act and the elements for discrimination are essentially the same. (The TCHRA is modeled after federal civil rights law) Barricks v. Minyard Foods 170 F3d 184 (5th Cir. 1999)

Question 23

What are the elements of the DISABILITY-BASED HARASSMENT/HOSTILE WORK ENVIRONMENT CLAIM Prima Facie Case unde the Americans with Disabilities Act?

Answer 23

DISABILITY-BASED HARASSMENT/HOSTILE WORK ENVIRONMENT CLAIM Prima Facie Case:

1) that she belongs to a protected group;
(2) that she was subjected to unwelcome harassment;
(3) that the harassment complained of was based on her disability or disabilities;
(4) that the harassment complained of affected a term, condition, or privilege of employment; and
(5) that the employer knew or should have known of the harassment and failed to take prompt, remedial action.

Flowers v. S. Reg’l Physician Servs. Inc., 247 F.3d 229, 232–35 (5th Cir. 2001); Credeur v. State of Lousiana (5th Cir. 2017)

SEVERE OR PERVASIVE - Harassment must be sufficiently pervasive or severe to alter the conditions of employment and create an abusive working environment. In determining whether a work environment is abusive, 5th Circuit considers the entirety of the evidence in the record, including “the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance.” (quoting Shepherd v. Comptroller of Public Accounts, 168 F.3d 871, 874 (5th Cir. 1999). 5th Circuit says threats of termination or criticism of work environment are not severe and pervasive. Kumar v. Shinseki, 495 F. App’x 541, 543 (5th Cir. 2012) (criticism in the workplace and threats to employee’s job did not constitute actionable harassment). Compared to 5th Circuit Flowers case where the individual was treated with humiliation and offensive language after supervisor knew that she had HIV. Stopped going around her, listened to her phone calls, eavesdropped on phone calls, and subjected her to vulgar statements. The LEGAL STANDARD in this circuit is high to rise to the level of an actionable offense, the disability based harassment must be sufficiently pervasive or sever to ALTER THE CONDITIONS OF EMPLOYMENT & CREATE AN ABUSIVE WORKING ENVIRONMENT.

Question 24

What is the difference between the Rehabilitation Act and the Americans with Disabilities Act as Amended?

Answer 24

FEDERAL EMPLOYEES, Entities receiving federal funds, federal contractors - The ADA’s nondiscrimination standards also apply to federal sector employees under section 501 of the Rehabilitation Act, as amended, and its implementing rules. Those employees should invoke the Rehabilitation Act.

5th Cir. States “The Rehabilitation Act and the Americans with Disabilities Act (ADA) have the same standards and provide the same remedies; case law interpreting either statute applies to both.”

Question 25

What are the elements of a FAILURE TO ACCOMODATE CLAIM under the ADAAA?

Answer 25

(1) the plaintiff is a ‘qualified individual with a disability;’
(2) the disability and its consequential limitations were ‘known’ by the covered employer; and
(3) the employer failed to make ‘reasonable accommodations’ for such known limitations.”

Neely v. PSEG Texas, Ltd. P’ship, 735 F.3d 242, 247 (5th Cir. 2013); Credeur v. State of Lousiana (5th Cir. 2017)

Question 26

What are the elements of an ADAAA Interference Claim?

Answer 26

Pl engaged in activity statutorily protected by the ADA;

Pl was engaged in, or aided or encouraged others in, the exercise or enjoyment of ADA protected rights;

The defendants coerced, threatened, intimidated, or interfered on account of her protected activity; and

The defendants were motivated by an intent to discriminate.

See attached sheet outlining EEOC Guidance on an ADA interference claim.

Question 27

What makes Section 1981 claims unique and what must I have in the fact scenario to bring a claim?

Answer 27

1. CONTRACT CLAIM (*At Will employee relationship is a contract per 5thCir)
2. Protects Race or Ethnicity
3. Protects not just employees but INDEPENDENT CONTRACTORS
4. Damages - Compensatory and Punative (with NO DAMAGE CAP)
5. Applies to Small Employers IF MORE OR LESS THAN 15 EMPLOYEES In additional to Title VII, file a

Section 1981 Claim (2 types available) (4 YEAR LIMIT FOR DAMAGES!!!!) (No administrative remedies, no damage cap, Cannot bring claim against federal employer, and against public employer - only if Section 1983 is INVOKED as the mechanism) - 1981 Claim covers “only conduct at the initial formation of the contract and conduct which impairs the right to enforce contract obligations through legal process” including “making performance, modification, and termination of contracts and the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship”

• Intentional Discrimination (NO DISPARATE IMPACT CLAIMS)
• Retaliation
• Fadeyi v. Planned Parenthood (5th Cir. 1998) - Court held that Texas at-will employment relationship is a contract for purposes of Section 1981

Question 28

Section 1981 of the Civil Rights Act of 1866

How many claims are there and how does someone bring a claim under this Act?

Threshold issue of who it applies to?

How long do you have to file? Where do you file?

What is its purpose?

What defenses?

What damages?

Answer 28

How many types of claims under Section 1981? (2 types)

1. Intentional Discrimination under Section 1981
2. Retaliation under Section 1981

DEADLINE TO FILE:

***NO REQUIREMENT FOR EXHAUSTING ADMINSTRATIVE REMEDIES

Federal Court – 4 years (at time of filing, Court will only consider discriminatory claims 4 years prior to that date)

NOTE: Amended by the Civil Rights act of 1991 (allowed for broader definition of contract to include the relationship after contract has formed)

Defenses - Think same as Title VII

Damages:

• Backpay
• Compensatory
• Punitive
• Pre-judgement Interest
• Injunctive Relief

**NO DAMAGE CAP(Title VII has cap)

**NO LIMITATION OF 2 YEARS (Limit will be 4 years)

Who does it apply to?

Applies to what Plaintiff’s?

• Independent Contractors
• Employees (Includes At-will employee because “at-will” is considered a contractual relationship for purposes of Sect. 1981 – 5th Cir.)

Applies to which Employers?

• Private Employers
• Labor Organizations
• Discrimination by Public Entity/State Actors (if Section 1983 invoked)*See note below

Who does is NOT Apply to?

• Discrimination by the Federal Government
• Discrimination by State or local government employers (-Section 1981 does not supply an independent cause of action against public entities, plaintiffs MUST ASSERT a claim under Section 1983 AND THEN THEY CAN MOVE FORWARD WITH A CLAIM)

Purpose?

Purpose: A federal law prohibiting discrimination on the basis of race, color, and ethnicity when making and enforcing contracts. Section 1981 specifically grants all individuals within the US jurisdiction the same rights and benefits as “enjoyed by white citizens” regarding contractual relationships.

Question 29

How do you prove a retaliation claim under Section 1981?

Answer 29

Retaliation Claim under Section 1981

Prima Facie Case:

1. Claimant engaged in a PROTECTED ACTIVITY
2. Employer carried out an ADVERSE EMPLOYMENT ACTION
3. CAUSAL NEXUS exists between Claimant’s protected activity and Employer’s adverse action (BUT-FOR CAUSATION – Requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer)

Element 1 - Protected Activity

-filing an EEOC complaint is protected activity

Element 2 – Adverse Employment Action

Constructive Discharge TEST: Must prove that `working conditions would have been so difficult or unpleasant that a reasonable person in [her] shoes would have felt compelled to resign.’

5th Circuit: In determining whether a reasonable employee would feel compelled to resign, we have considered the relevancy of the following events:

(1) demotion;
(2) reduction in salary;
(3) reduction in job responsibilities;
(4) reassignment to menial or degrading work;
(5) reassignment to work under a younger supervisor;
(6) badgering, harassment, or humiliation by the employer calculated to encourage the employee’s resignation; or
(7) offers of early retirement [or continued employment on terms less favorable than the employee’s former status]

Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir.2001)

(List other adverse employment actions)

Element 3 – Causal Nexus – “BUT-FOR” CAUSATION for Retaliation

Question 30

How does someone prove an intentional discrimination claim under Section 1981?

What is NEVER PART of that claim?

Answer 30

Intentional Discrimination under Section 1981

Plaintiff must prove PRIMA FACIE Case (Preponderance of the Evidence):

1. Belong to Class of Persons (Based on Race)
2. Defendant has to Intentionally Discrimination on Basis of Rights
3. Conduct violates a right enumerated in 1981(a) - Making and performing of a Contract (**For purposes of Sect. 1981 – At Will is a Contract)

Modification and Termination of a Contract

Benefits, Privileges, Terms and Conditions of the Contractual Relationship

SAME McDonnell Douglas Burden Shifting Analysis as Title VII

Defendant must then show evidence of LEGITIMATE, NONDISCRIMINATORY REASON

If shown by Defendant, Plaintiff must show PRETEXT

Replaced by someone outside of her protected class (Race or Ethnicity) OR

Was treated less favorably than other similarly situated individuals outside her protected class (under 1981 – MUST be Race or Ethnicity)

Plaintiff can PROVE INTENT by evidence of Defendant’s:

• Making Performance Modification;
• Termination of Contract; OR
• Affecting Privileges, Terms and Conditions of a Transactional Relationship

NEVER PART OF CLAIMS - DISPARATE IMPACT

Question 31

What was the purpose and what were 6 of the major changes of the Civil Rights Act of 1991?

Answer 31

Civil Rights Act of 1991 - Amended and updated other Acts

Purpose: On November 21, 1991, Congress enacted the Civil Rights Act of 1991. Congress acted to address a series of no fewer than seven decisions by the Supreme Court, some of which were regarded as changing the well-established landscape of discrimination law, and calling into doubt existing precedent. Among the decisions that Congress addressed were Price Waterhouse v. Hopkins (1989) and Wards Cove Packing Co. v. Antonio (1989). In Price Waterhouse, the Court provided that, even where a plaintiff demonstrates that an employer was motivated by discrimination, the employer can still escape liability by proving that it would have taken the same action based upon lawful motives. Wards Cove reinterpreted the disparate impact method of proof, and held that an employer can avoid liability merely by showing a business justification for the practice causing a disparate impact, and that the plaintiff has the burden of proving a lack of a business justification. Both cases were seen as having made it more difficult for plaintiffs to prevail in employment discrimination lawsuits.

The 1991 Act amended several of the statutes enforced by EEOC, both substantively and procedurally. Previously, jury trials were possible only in cases brought under the EPA or the ADEA.

Changes:

1. JURY TRIAL & COMPENSATORY & PUNATIVE DAMAGES: Under the provisions of the 1991 Act, parties could now obtain jury trials, and recover compensatory and punitive damages in Title VII and ADA lawsuits involving intentional discrimination.
2. STATUTORY CAPS ON SOME DAMAGES: The Act placed statutory caps on the amount of damages that could be awarded for future pecuniary losses, pain and suffering, and punitive damages, based on employer size. The maximum award of compensatory and punitive damages combined was set at $300,000 for the largest employers (more than 500 employees).
3. CODIFICATION OF DISPARATE IMPACT IN TITLE VII: In addition, the 1991 Act added a new subsection to Title VII, codifying the disparate impact theory of discrimination, essentially putting the law back as it had been prior to Wards Cove.
4. MOTIVATING FACTOR – PRICE WATERHOUSE ISSUE: And in response to Price-Waterhouse, the Act provided that where the plaintiff shows that discrimination was a motivating factor for an employment decision, the employer is liable for injunctive relief, attorney’s fees, and costs (but not individual monetary or affirmative relief) even though it proves it would have made the same decision in the absence of a discriminatory motive.
5. EMPLOYEES OF CONGRESS & HIGH-LEVEL POLITICAL APPOINTEES PROTECTED FROM DISCRIMINATION: The Act also provided employment discrimination protection to employees of Congress and some high-level political appointees.
6. AMERICAN EMPLOYERS ABROAD ARE COVERED UNDER TITLE VII & ADA - Title VII and ADA coverage was extended to include American and American-controlled employers operating abroad.

IDENTIFY who Applicable to:

Persons/Employers affected by these acts because it amended the following discrimination acts:

• Title VII of the Civil Rights Act of 1964 (referred to as “Title VII”);
• The Americans with Disabilities Act of 1990;
• Section 1981 of the Civil Rights Act of 1866 (referred to as “Section 1981”);
• The Attorney’s Fees Award Act of 1976; and
• The Age Discrimination in Employment Act of 1967 (ADEA).

Question 32

How did Civil Rights Act of 1991 change Title VII damages?

Answer 32

Section 1981 had allowed for compensatory and punitive damages -But now Title VII claims could get them too with the following CAPS:

Compensatory and Punitive Damages (CAP APPLIES)

Compensatory and punitive damages may be awarded in cases involving intentional discrimination based on a person’s race, color, national origin, sex (including pregnancy, gender identity, and sexual orientation), religion, disability, or genetic information.

Compensatory damages pay victims for out-of-pocket expenses caused by the discrimination (such as costs associated with a job search or medical expenses) and compensate them for any emotional harm suffered (such as mental anguish, inconvenience, or loss of enjoyment of life).

Punitive damages may be awarded to punish an employer who has committed an especially malicious or reckless act of discrimination.

Limits on Compensatory and Punitive Damages (CAP LIMITS BELOW)

There are limits on the amount of compensatory and punitive damages a person can recover. These limits vary depending on the size of the employer:

For employers with 15-100 employees, the limit is $50,000.

For employers with 101-200 employees, the limit is $100,000.

For employers with 201-500 employees, the limit is $200,000.

For employers with more than 500 employees, the limit is $300,000.

Question 33

What does the Lilly Ledbetter Fair Pay Act do?

What laws does it Amend?

What is the time limit to file?

How far back do can you collect damages for?

What specific charges are listed?

Answer 33

OVERALL EFFECT: This added language effectively eliminates those burdens the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber imposed, by in essence resetting the 180 day (or 300 day) statute of limitations period each time wages, benefits or any other compensation is paid out, based upon the original discriminatory decision.

Purpose: In the 2007 case, Ledbetter v. Goodyear Tire & Rubber Co., the Supreme Court up-ended longstanding precedent and held that employees could not sue for pay discrimination under Title VII of the Civil Rights Act of 1964 if their employer’s original discriminatory pay decision occurred more than 180 days before they initiated a claim. (Title VII is a separate federal statute that prohibits wage discrimination on the basis of race, religion, national origin, and sex.)

Congress acted swiftly to pass the Lilly Ledbetter Fair Pay Act to overturn the Court’s decision. The Act made it clear that each discriminatory paycheck – not just an employer’s original decision to engage in pay discrimination – resets the period of time (i.e., statute of limitations) during which a worker may file a claim of pay discrimination on the basis of sex, race, national origin, age, religion and disability.

IDENTIFY who APPLICABLE to

Employee: Claiming to being paid differently for discriminatory reasons

Employer: 15 or more employees – Title VII, Americans with Disabilities Act

20 or more employees – Age Discrimination Act

ELEMENTS/PRIMA FACIE CASE

Under the Act, an individual subjected to compensation discrimination under:

• Title VII of the Civil Rights Act of 1964
• Age Discrimination in Employment Act of 1967
• Americans with Disabilities Act of 1990
• The Rehabilitation Act

may file a charge within 180 (or 300) days of any of the following:

1. When a discriminatory compensation decision or other discriminatory practice affecting compensation is adopted;
2. When the individual becomes subject to a discriminatory compensation decision or other discriminatory practice affecting compensation; or
3. When the individual’s compensation is affected by the application of a discriminatory compensation decision or other discriminatory practice, including each time the individual receives compensation that is based in whole or part on such compensation decision or other practice.

DAMAGES

Title VII, ADEA, Americans with Disabilities Act, Rehabilitation Act

-Back Wages limited up to 2 years (Not all the way back to the possible discriminatory pay compensation decision.)

NUANCES/CASELAW

PENSION BENEFITS - These time frames apply to all forms of compensation, including the payment of pension benefits. However, because the congressional findings state that “[n]othing in [the Lilly Ledbetter Fair Pay Act] is intended to change current law treatment of when pension distributions are considered paid,” it may be determined that pension benefits are considered paid “upon entering retirement and not upon issuance of each annuity check. ” Therefore, to avoid potential timeliness issues, an individual who is considering challenging his or her pension benefits is strongly encouraged to file a charge within 180/300 days after retirement.

Question 34

What is the test and potential consequences for a Secondary Boycott?

Answer 34

Test: Even if the Union has other goals as well, the statute makes its picketing if “an object” is to pressure the secondary employer into ceasing to deal with the primary. So long as even one of the union’s objectives is to put pressure on the primary employer by influencing the secondary employer, the picketing can be found illegal.

Consequences: Picketing declared illegal, Unfair Labor Charges and/or lawsuits can be brought by injured neutral party, injured primary employer or BOTH

-Serious penalties, including injunctive relief and monetary damages