Quick Study Flashcards
Title VII
- 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
ADA
- 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
Elements of a Failure to Accomodate Claim
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
Reasonable Accomodation: Interactive Process
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
Reasonable Accomodation: Undue Hardship
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
Medical Examinations
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
ADEA
- 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
BFOQ
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
RFOA
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
Older Worker Benefit Protection Act
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
Proving Individual Disparate Treatment
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)
Prima Facie Case for Individual Disparate Treatment
(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
Mixed Motive Cases
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
After Aquired Evidence
that p has engaged in misconduct that coudl have justified the employment decision:
does not effect liability
will limit damages
Proving Systemic Disparate Treatment
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