Quick Study

Question 1

Title VII

Answer 1

• Discrimination based on race, color, national origin, sex, or religion
• 15 or more employees

race: includes race, perceived race, and race based characteristics

national origin: ancestry, culture, or language

religion: sincerely held belief; also requires reasonable accomodation

sex: includes pregnancy, child birth, medical conditions

Question 2

ADA

Answer 2

• Plaintiffs must be def of disability; and must be qualified with or without accomodation
• Employeer employs 15 or more employees
• states may not be sued for $

actual: mental or physical impairment that substantiall limits at least one major life activity (consider nature and severity of limitation, duration, impact on individual–mitigating measures do not change analysis)

• does not include glasses; does include epilepsy, MS, hypertension, asthma, diabetes

record: have recovered, but once had actual (ex: cancer)

regarded as having: treatment as if has imapirment, when does not

relationship to person with disability

Question 3

Elements of a Failure to Accomodate Claim

Answer 3

For a person with a disability:

Employers are required to give qualified individuals with disabilites reasonable accomodations if the accommodation will permit the individual to perform the essential elements of the job

qualified: requisite skills and experience, minimum requirements

essential job function: position exists for this function; function needs to be done and there are limited peopel to do it; specialized like a commercial driver’s license

reasonable accommodation: change to procedure, job, work environment; moving to an open position

Question 4

Reasonable Accomodation: Interactive Process

Answer 4

Employer:

ADA requires employer to discuss potential reasonable accomodations with employee

Employer only has this requirement if the disability is apparents, or if the employee tells the employer

May provide any reasonable accomodation that effectively permits employee to work; doesn’t need to be the one requested

Employee:

Required to engage in process by providing information about capabilities

Question 5

Reasonable Accomodation: Undue Hardship

Answer 5

undue hardship: employer can only refuse to provide accomodation if it would cause undue hardship–significant diffculty or expense in light of size and financial resources

Question 6

Medical Examinations

Answer 6

Under ADA employer may require an employee to submit to a medical exam only:

(1) when hiring, may require after making offer, by conditionined offer on passing exam
(2) Current employees may only be required when it is job related and consistent with business necessity

Question 7

ADEA

Answer 7

• plaintiffs 40 years and older
• needs to employ 20 employees
• may not sue state for $

exemptions: does not protect bona fide executives; safety officers; and some elected and appointed gov officials. also, early retirement incentive plans are treated as a benefit and so cannot be basis for age discrimination

defenses: bona fide occupational qualification; reasonable factor other than age; good cause

Question 8

BFOQ

Answer 8

Bona fide occupational qualification: defense may be available for a policy that relies on age as a criterion. must show that:

(1) the requirement is reasonable necessary to the essence of the employer’s business; AND
(2) all or substantiall all olfer excluded individuals must be unable to perform the job safely or efficiently; OR dealing with individuals as opposed to the group would be impractical

*v narrow defense

**race can never be BFOQ

Question 9

RFOA

Answer 9

Reasonable factor other than age

For disparate impace claims: this defense allows employers to rely on neutral policies, even if it has adverse effect against older workers

example: requirement that a worker can bike 10 miles to get a bike delivery job

Question 10

Older Worker Benefit Protection Act

Answer 10

Prohibits employers from rushing employees to sign a waiver of ADEA rights in return for severence package

Requires employers to write waivers so that they are understood, refer specifically to the ADEA so that employees know they won’t be able to sue, and advise employees to consult with a lawyer

An individual must be given 21 days to consider signing waiver; 45 days if a group is offered a waiver

• group also must be given description of who is eligible for the package and a list of job calssicications and ages of people being offered and those remaining in co.

Employees have 7 days to revoke after signing agreemnet

Question 11

Proving Individual Disparate Treatment

Answer 11

direct evidence: document or statement showing

circumstantial evidence: burden shifting framework

(1) P presents prima facie case
(2) Burden shifts to employer to articulate legitimate, nondiscriminatory reason
(3) Shifts back to P to show LDR is not the reaon reason/ is pretext (prove by preponderence of the evidence)

Question 12

Prima Facie Case for Individual Disparate Treatment

Answer 12

(1) Member of a protected class
(2) Qualified for the position (minimum qualifications)
(3) Subjected to adverse employment action
(4) Similarly situated individual not in protected class was treated better

• Firing: employees not in same protected class were retained
• Promotion: employee not in same protected classs received job, or position remains open and employer continued accepting applications after p rejected

*this creates a rebuttable presumption of discrimination

Question 13

Mixed Motive Cases

Answer 13

Under ADEA and in retaliation cases: p must prove that retaliatory or discriminatory action is the but for cause of the employer’s decision

All ofther Title VII claims: p must show that discriminatory reason was a motivating factor in the decision–entitled to injunctive relief and atty fees, but not monetrary damages

ADA: unsettled which test applies

Question 14

After Aquired Evidence

Answer 14

that p has engaged in misconduct that coudl have justified the employment decision:

does not effect liability

will limit damages

Question 15

Proving Systemic Disparate Treatment

Answer 15

P contends that employer intentionally discriminated against the entire protected class–two types:

(1) Formal discriminatory policies: specifically addresses a protected class–only defense is a BFOQ (performing arts ex.)
(2) Pattern and practice: discrimination is part of standard operating procedure; bc there is no written policy must be proved through anecdotal evidence and statistics–can defend by disproving statistics or offering nondiscriminatory explanation

Question 16

Proving Disparate Impact

Answer 16

Facially neutral policy or practice that has a statistically significant adverse impact on a protected class–unlike disparate treatment cases, do not have to show intent

(1) P makes out prima facie case [identify facially neutral policy/practice; desmonstrate protected class adversely affected; casual connection bw policy and adverse effect]
(2) Employer defends by disproving statistics or proving the practice is job related and consistent with business necessity (bottom line isnt defense)
(3) Burden shifts back to P to show that there ia a less discriminatory alternative

Question 17

Prima Facie Case for Disparate Impact

Answer 17

(1) identify facially neutral policy/practice;
(2) desmonstrate protected class adversely affected;
(3) desmonstrate casual connection bw policy and adverse effect

Question 18

Religious Faliure to Accomodate

Answer 18

Title VII requires employers to provide reasonable accomodations

(1) prima facie case:

• p must hold a bona fide religious belief
• must inform employer
• belief must require p to conflict with some job requirement
• employer takes adverse action based on conflict

(2) if p makes out prima facie case employer has duty to explore whether rasonable accomodation exists–duty not as broad as ADA
* any hardship that is more than de minimus is undue

**Religious organizations are generally not subject to religious accomodation claims

Question 19

Harassment

Answer 19

quid pro quo: limited to sex discrimination

(1) supervisor, manager, or other agent of employer
(2) made a sexual proposition
(3) under threat of adverse employment action, which was carried out
(4) adverse employment action resulted from the proposition

hostile environment:

(1) exposed to unwelcome or offensive conduct–actually offended
(2) bc of membership in protected class
(3) that is severe or pervasive such that it alters the plaintiff’s terms and conditions of employment–reasonable person standard

Question 20

Employer Liability for Harassment/ Defenses

Answer 20

liability: employer will be liable for quid pro quo by a supervisor; if hostile work environment is created by supervisor and results in tangible empt action, emper will be liable

affirmative defense: if hostile work environment did not result in adverse action, an emper may avoid liability by proving it took reasonable measures to prevent and correct harassing behavior and the p unreasonably failed to utilize those measures–only a defense if **no adverse empt action**

Question 21

Retaliation

Answer 21

Title VII, ADA, and ADEA protect empees from retaliation if engage in protected activity

prima facie case

(1) show p engaged in protected activity: opposing discriminatory practices; or filing a charge or participaing in investigation or proceedings
(2) employer took adverse action against p
(3) there is a casual connection bw the activity and the adverse action

emper response: burden shifts to emper to articulate LNDR for adverse action

p’s ultimate burden: prove LNDR not real reason, and real reason is the protected activity

Question 22

Filing a Charge

Answer 22

File with EEOC or PA Human Relations Comm’n

• 300 days to file with EEOC and 180 PHRC; starts running from date of adverse action; or in harassment from the date of last discriminatory act
• Lilly Ledbetter Fair Pay Act: if discrimination infected compensation decision, every subsequent application constitues a new act

EEOC will investigate

• insufficient ev: will dismiss charage and issue right to sue letter; empee has 90 days to commence suit in fed district court
• merit: issue finding of “reasonable cause” and attempt to conciliate case; if fails either EEOC will sue emper or issue right to sue letter

Question 23

Remedies

Answer 23

Legal Remedies

Title VII and ADA:

• compensatory damages; capped with punitive damages
• no liquidated damages
• attorney’s fees may be awarded

ADEA

• no compensatory or punative damages
• liquidated may be awarded
• attorney’s fees may be awarded

Equitable Remedies

all allow:

• reinstatement
• instatement
• back pay
• front pay (offset by duty to mitigate)