! Ray - Essay Employment Flashcards
Employement
TITLE VII
CRR PINS
- CRR PINS *
PLAINTIFFS
Color, Religion, Race, National, Origin, Sex (includes preg/child birth)
DEFENDANT:
15 Employees
Ex: Religious/Indian/Private Me C
Rules
1. Preg may not be treated less faborably than other med conditions
- Dress codes usually ok, but cannot impose unequal burden
- No discrim based on stereotypes (but sexual orientation is ?)
Title VII Religion
Must accommodate religious practices/observances unless unable to do so w/o undue hardship
1, Doesn’t apply to religious orgs
2. Ministerial exceptions: if position deals with religious core of organization, court may not consider non-religious-based discrim charges bc doing so would infringe on Free Exercise.
P must establish prima facie:
1) P holds BF religious belief that conflicts with job duty,
2) informed his Eor of his belief
3) adverse emp action due to failed job req
D Defenses:
(i) BFOQ + (ii) Undue Hardship:
- anything more than de minimus (econ or non-econ)
- Only consider if no reasonable accommodation offered
- Reasonable Accommodation: allows ee to engage in her religion. Does not have to be ee’s preferred choice.
Age Discrimination Employment Act
ADEA
discrimination against 40 or over, discriminated against for someone younger.
P: 40 years older
D: 20 employees
– Exception: public safety officers, elected officials exception
- Two Special Defenses
(1) Good Cause
(2) Reasonable Factors Other Than Age
- Two Special Defenses
Eor may engage in a practice with disparate impact on older applicants/EEs if based on a reasonable factor other than age
Titile VI Sexual Discrimination
STRATEGY: QUID PRO vs. HOSTILE vs. RETALIATION
I. HARRASMENT
— 1. yes adverse employment action= quid pro quo
—-2. no= hostile work enviorement
Quid pro quo= “QAS”
- supervisor unwelcome conduct
- actually carried out adversement emplyoement action
Hotile= “HUMP PE”
Unwelcome by suvervisor
Member of Protected class (female)
Pervasive + Severe
… D can show
Prevented measure in place
Employee failed to take those measures those measures
II. RETALIATION
ex: Pam files sex d act, then employer fires hubby.. july 2012
- protected activity
- employer took action that a rsbl employee or job application would find to be materially adverse
- causal connect- protected activity and action
ADA Defensenes
I. P must be “Qualified Individual”
- – “individual with a disability who, with or without reasonable accommodation, can perform all of the essential functions of the job.”
- – Essential Functions: includes regular/timely attendance, eor’s job description is given deference; covers alcoh/addicts,
- not current drug users (eor’s reasonable belief that it is ongoing problem)
II. Within Protected Class
(1) Actual Disability
(2) Record (even if not active)
(3) Regarded as Disabled
-Eor “regards” an Ee as having a disability if it takes action prohibited by the ADA based on the Ee’s impairment or an impairment the Eor believes the Ee has, whether or not it subs limits or is perceive to subs limit a MLA
III. Actual Disability
(1) Mental/Physical Impairment
(2) Substantially Limits
- compared to most people in gen pop, doesn’t have to be severe, broad interp
(3) Major Life Activity (seeing, hearing, major bodily functions like insulin)
- episodic/remission okay if it would substantially limit MLA if active
- consider limitation w/o regard to correctives (other than glasses)
(i) LNDR + (ii) UNDUE HARDSHIP
Undue Hardship = difficulty or expense (diff than religious definition). Factors:
- size & financial resources
- burden on P to prove reasonable accom exists - Direct threat = ee would pose a direct threat (significant risk) to health & safety of others that cannot be eliminated by reasonable accom.
- must be determined by objective medical judgment - Job-Related & Consistent w/ Business Necessity
- Eor may inquire into applicant’s ability to do the job and may condition offer on results of medical exam as long as everyone is subject and it is confidential
Procedure for Enforce
- PA Human Relations Commission - 180 days (ask to cross file)
- EEOC - 300 days, or 30 after Notice of Dismissal (whichever earlier)
After 180 days…. - Demand Right to Sue Letter from PHRC, or wait until determination.
- File in Court w/in 90 days from receipt of Right to Sue (not needed for ADEA)/Notice of Dismissal
Claims
Individual Disparate Treatment Systemic Disparate Treatment Systemic Disparate Impact Harassment Retaliation
Direct Evidence - evidence that, if believed, shows discriminatory conduct by the employer without reliance on inference or presumption (e.g., admission)
Indirect Evidence - inference (pretext case) - motivating factor
Individual treatment claim
EE treats an individual differently because of prohibited characteristics.
May be proven by Single Motive (Pretext) and Mixed Motive
Prima Facie
1) Membership in protected class
2) Qualified for the position or otherwise performing satisfactorily
3) Adverse employment action
4) Inference of discrimination [e.g., similarly situated employees treated differently, position remained open or was filled w/ someone outside class]
Single motive pretext
1) Establish prima facie (presumption of discrim), then burden shifts to Eor.
2) Eor rebuts by showing LNDR (burden of production)
3) IF LNDR provided, presumption dropped (burden shifts back to Ee).
4) Ee must establish that the LNDR is merely pretext, and is not the real reason behind the action.
- Must prove that real reason was discrimination the discrim was DETERMINATIVE factor in the action.
LNDR = Any reason not relating to the protected characteristic.
Mixed Motive
Action was taken due to both permissible and impermissible reasons. Not available for ADEA or Title VII Retaliation claims (exclusive, but for)
Title VII
-Prima Facie + Ee demonstrates that an impermissible reason was a MOTIVATING FACTOR in the decision
LIABILITY IS ESTABLISHED HERE
-Same Decision Defense: Eor then demonstrates by PoE that it would have made same decision even in absence of impermissible reason.
–SDD limits remedies: CANNOT award damages, reinstatement, damages, hiring or promotion (but may get declaratory/injunctive or fees/costs)
ADA
Generally need direct evidence that impermissible reason was motivating factor.
SDD is COMPLETE BAR to liability (proved by Eor by PoE). I.e., liability doesn’t attach until Eor has opportunity to show SDD.
Systemic Disparate Treatment
Eor discriminating against entire class.
Two Methods:
(i) formal policy of discrim (e.g., only women can work at Hooters, blacks must contribute more to life insurance plan)
(ii) pattern or practice of discrim
Formal Policy
1) P proves Eor has facially discriminatory policy
2) Eor offers statutory defense “Bona Fide Occupational Qualification” (BFOQ) aka
“Reasonably necessary to the normal operation of the particular business (relates to essence or central mission).”
- No BFOQs for RACE or ADA
- e.g., no female prison guards
D must show
(i) Q is reasonably necessary to normal operation of business AND
(ii) Class is a proxy for Q, by showing-
(a) reasonable cause to believe that all/sub all of the ppl in that class are unable to perform safely and efficiently the duties of the job, OR
(b) some ppl in class possess that trait, and its practically impossible for eor to deal with class individually.
Also BF Seniority Systems/BF Emp Benefit Plan (ADEA)
Pattern or Practice
Prima facie: P must prove that eor’s SOP discriminates against a protected class. Can be proved by:
(i) Statistics
- comparisons must be correct in geographic space and skill (if not specialized skill, can use gen pop)
(ii) Anecdotal (testimony)
(iii) Historical
D rebuts by:
1) Challenge stats, or inference they raise
2) BFOQ
3) Avoidance of disparate impact liability (only when eor has strong basis to believe that it will be subject to disp impact liability if it fails to take action)
4) Voluntary Affirmative Action [Race] (must aim to remedy manifest imbalance in trad’l segregated job and cannot unduly trammel rights of other groups)
- Provided by D as LNDR, P then can say it doesn’t meet elements
Systemic Disparate
- Eor’s facially neutral policies adversely affect protected class more than others and cannot be adequately justified.
- No intent needed.
- Can be challenged when adopted or implemented
Prima Facie
(1) Membership
(2) Particular employment practice that causes impact.
- Bottom Line Exception: if P can’t tell which practice causes impact b/c eor doesn’t keep records
(4) Practice causes disproportionate impact
- EEOC 4/5ths Rule: if protected group pass rate less than 80% of remainder’s pass rate, regarded as evidence of adverse impact. (e.g., what is 80% of the male pass rate?)
Rebuttal
-Show business necessity and job relatedness.
Exceptions
-Professionally Developed Tests, BFSS, BFMPS
-ADEA claims: decisions based on reasonable factors other than ages
P’s Response
Show alternative employment practice (AEP):
(1) serves same purposes as contested practice
(2) but isn’t discrim, AND
(3) is reasonable to expect the eor to use
Harrasment:
quid pro quo
Ee’s terms or conditions of employment altered due to her membership.
Two types:
1. Quid Pro Quo
(scum sat down)
- Sexual conduct condition of tangible employment benefits
- tangible employment action occurred
- No formal defenses.
- Eor is VL.
- Must be supervisor
