Types of Claims

Question 1

What types of claims should you know for the Bar?

Answer 1

1. Individual disparate treatment;
2. systemic disparate treatment;
3. disparate impact;
4. failure to accommodate (only for ADA and religion);
5. harassment; and
6. retaliation

Question 2

What is required to prove constructive discharge?

Answer 2

The employee must show that the employer made the employee’s working conditions so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.

Factors:

1. Employer threatened to fire employee or encouraged them to resign;
2. Employer demoted employee;
3. Employer reduced employee’s pay or benefits;
4. Employer involuntarily transferred employee to less desirable position;
5. Employer changed employee’s responsibilities; or
6. Employer gave employee unsatisfactory performance evaluations.

Question 3

What is individual disparate treatment?

Answer 3

A claim that alleges that the employer intentionally discriminated against an individual employee on the basis of a protected characteristic. Available under all three statutes.

Question 4

How can you prove individual disparate treatment?

Answer 4

Through direct or circumstantial evidence.

Direct: Something like an admission by the hiring manager that they didn’t hire the applicant because the applicant was black.

Circumstantial: Explained elsewhere.

Question 5

What is required to support circumstantial evidence?

Answer 5

1. Plaintiff must establish the prima facie case of individual disparate treatment.
2. The defendant then must offer a legitimate, non-discriminatory reason for the alleged treatment.
3. If that burden is met, the plaintiff then has the ultimate burden of persuasion to show that the employer’s profferred legitimate reason is not to be believe and that discrimination was the actual reason for the actions.

Question 6

What is the prima facie case for individual disparate treatment?

Answer 6

The plaintiff must show by a preponderance of the evidence that:

1. they are a member of a protected class;
2. they were qualified for the position and performing satisfactorily;
3. they suffered an adverse employment action; and
4. the action occurred under circumstances that raise an inference of discriminatory action.

Question 7

What is the prima facie case for failure to hire or promote?

Answer 7

The plaintiff must show by a preponderance of the evidence that:

1. they are a member of a protected class;
2. they applied for an open position for which they were qualified;
3. they were denied hire or promotion for the position; and
4. the position remained open and the employer continued to seek applicants OR it was filled by another person outside of the plaintiff’s protected class.

Question 8

What relevance does the treatment of similarly situated employees have?

Answer 8

A plaintiff may establish that an adverse action occurred under circumstances that raise an inference of discriminatory action (fourth element of the PFC) by showing that similarly situated employees who were not members of the protected group at issue were treated differently by the employer than the employee was.

Question 9

What relevance do stray remarks have?

Answer 9

Stray remarks made by a non-decision maker or said in context unrelated to the decision-making process are not direct evidence, but they can be used as circumstantial evidence.

Question 10

How can the employer defend its decision?

Answer 10

By producing evidence of a legitimate, non-discriminatory reason for its action. This is any explanation the employer offers for the unfavorable treatment that does not invoke the protected characteristic.

N.B.: The employer must have known about this reason for its action before the action was taken.

Question 11

How can the employee rebut the employer’s explanation?

Answer 11

By showing it was pretextual, usually by showing the falsity of the employer’s proffered reason as well as other circumstantial evidence.

Question 12

What is a mixed-motive case?

Answer 12

A mixed-motive case is one in which the employer’s actions were the result of both a legitimate reason and a discriminatory reason.

Question 13

How does the mixed-motive doctrine apply to Title VII cases?

Answer 13

A plaintiff can prevail in such a case by showing that the employee’s status was merely a “motivating factor” for the negative employment decision.

Question 14

How does the mixed-motive case apply to the ADEA?

Answer 14

It does not apply. The plaintiff must show by a preponderance of the evidence that the discrimination was the “but-for” cause of the employer’s decision. This is also true for retaliation claims under Title VII.

Question 15

How does the mixed-motive case apply to the ADA?

Answer 15

There’s a split. Some courts use the but-for standard, others use the motivating factor standard.

Question 16

How does the mixed-motive case affect remedies?

Answer 16

It precludes the employee from recovering damages so long as the employer can show that it would have reached the same decision even in the absence of the discriminatory reason. The plaintiff may still be entitled to declaratory or injunctive relief, and attorneys fees.

Question 17

What is after-acquired evidence?

Answer 17

Evidence of misconduct, misrepresentation, or other legitimate grounds for termination of non-hiring of an employee that the employer only discovers after already terminating or not hiring the employee for some other reason.

Question 18

What effect does after-acquired evidence have on liability?

Answer 18

It does not provide an employer immunity from liability in discharge and failure to hire cases because the employer could not have been motivated to terminate the employee by conduct it knew nothing about at the time it made the decision.

Question 19

What effect does after-acquired evidence have on remedies?

Answer 19

Neither reinstatement nor front pay is appropriate where after-acquired evidence is present.

Question 20

What is systemic disparate impact?

Answer 20

When an employer intentionally discriminates against an entire class of employees.

Question 21

How can systemic disparate treatment be proven?

Answer 21

1. By showing that the employer has a facially discriminatory policy OR
2. by showing that the employer engages in a pattern and practice of discrimination.

Question 22

What is a facially discriminatory policy?

Answer 22

A policy that is discriminatory on its face (that’s helpful).

Example: a prison requiring that all guards must be men.

Question 23

How can an employer defend against a facially discriminatory policy?

Answer 23

Only by showing a bona fide occupational qualification. This requires that the employer prove that

1. the qualification is reasonably necessary to the normal operation of the particular business AND
2. EITHER all or substantially all of the persons in the excluded class would be unable to perform the duties of the job safely and efficiently OR
3. some employees in the excluded class possess a trait that would preclude safe and efficient job performance, AND it is practically impossible for the employer to deal with the class of employees on an individual basis.

Question 24

What trait can there be a BFOQ for?

Answer 24

Anything except race.

Question 25

What does it mean to engage in a pattern and practice of discrimination?

Answer 25

The employer’s standard operating procedures discriminate against a protected class.

Question 26

How can you prove pattern and practice discrimination?

Answer 26

They are typically proven through statistics showing that the protected class makes up a significantly smaller percentage of the employer’s workforce compared to the makeup of the population in the location of the business. Historical and anecdotal evidence is also admissible in these claims.

Question 27

How can an employer defend against pattern and practice claims?

Answer 27

Either by

• showing that the statistics themselves were incorrectly gathered or calculated, such as by using the wrong comparators OR
• offering a non-discriminatory reason that explains the statistics, such as the fact that one group is not as interested in the position as another group.

Question 28

What is disparate impact discrimination?

Answer 28

When a facially neutral policy or practice of the employer disproportionately and adversely impacts a protected class.

N.B.: Unlike in a disparate treatment claim, there is no requirement to prove a discriminatory motive in disparate impact cases.

Question 29

What is a facially neutral practice or policy?

Answer 29

It is what it sounds like.

The plaintiff must identify the particular practice or policy that causes the disparate impact unless the employer’s records prevent the plaintiff form being able to tell which practice causes the impact, in which case relying on the impact alone is sufficient.

Question 30

What impact must the plaintiff prove?

Answer 30

The plaintiff must show, usually through statistics, that the particular practice disproportionately excludes members of the protected class–a good rule of thumb is that disparate impact is shown when the protected group’s selection rate is less than four-fifths of the rate for the group with the highest rate.

Question 31

What defense can the employer raise to a disparate impact claim?

Answer 31

• Defense of business necessity: that the challenged practice or policy is job-related and consistent with business necessity.

Question 32

Is “bottom line” impact a defense?

Answer 32

No. The employer can’t just hire a bunch of the affected class to change around the bottom line.

Question 33

How can the plaintiff respond to the defense of business necessity?

Answer 33

By showing that there is an alternative practice or policy that could achieve the employer’s same goal without a discriminatory effect, as long as the cost of the alternative practice or policy does not exceed the existing practice or policy.

Question 34

Under what circumstances can a failure to accommodate claim arise?

Answer 34

1. Under the ADA for actual and prior history of disabilities (but not for regarding as) AND
2. under Title VII for a religious belief.

Question 35

What is the prima facie case for a failure to accommodate claim for a religious belief?

Answer 35

The plaintiff must show that they:

1. hold a bona fide religious belief that conflicts with a job requirement;
2. informed their employer of their belief; AND
3. suffered an adverse employment action on account of failing to comply with the conflicting job requirement.

Question 36

What is a reasonable religious accommodation?

Answer 36

Any adjustment to the work environment that will allow the employee to practice their religion, such as:

• flexible scheduling;
• voluntary substitutions or swaps;
• job reassignments and lateral transfers; and
• modification of grooming requirements/other workplace practices, policies, and procedures.

Question 37

Under what circumstances is an employer not required to provide a reasonable accommodation for a religious belief?

Answer 37

If doing so would impose an undue hardship on the employer’s legitimate business interest.

Question 38

What is an undue hardship on the employer’s legitimate business interests?

Answer 38

When the accommodation would

• require more than ordinary administrative costs,
• diminish efficiency in other jobs,
• infringe on other employees’ job rights or benefits,
• impair workplace safety,
• cause co-workers to carry the accommodated employee’s share of potentially hazardous or burdensome work, or
• if the proposed accommodation conflicts with some other law or regulation.

Question 39

What employers are exempt from providing religious accommodations?

Answer 39

• Religious organizations with regard to work that is connected with religious activities of the entity,
• religious educational institutions whose curriculum is directed toward the propogation of that religion, and
• entities in which religion is a bona fide occupational qualification (BFOQ) that is reasonably necessary to the normal operation of the business.

Question 40

When does harassment occur?

Answer 40

When the employer effectively alters the terms, ocnditions, or privileges of an employee’s employment because of her protected status. This can be either quid pro quo or hostile work environment.

Question 41

What is quid pro quo harassment?

Answer 41

A form of harassment that applies only to sexual harassment. The prima facie case requires that:

1. the alleged harasser be a supervisor who
   
   1. made a sexual advance towards the employee and
   2. carried out the threat of a consequence if the sexual advance is refused; AND
2. an adverse employment action resulted from a refusal to submit to the advance.

Question 42

Is an employer vicariously liable for the employee-supervisors quid pro quo harassment?

Answer 42

Yes.

Question 43

What is the prima facie case for a hostile work environment harassment claim?

Answer 43

1. The employee experiences unwelcome an offensive sexual conduct OR unwelcome and offensive conduct on account of their status as a member of a protected class AND
2. the conduct is so severe and pervasive that it alters the terms and conditions of their employment and creates an abusive working environment AND
3. the environment is objectively hostile or abusive AND
4. the plaintiff subjectively perceived the environment to be abusive.

Question 44

What constitutes offensive conduct (not for sexual harassment)?

Answer 44

Things like, but not exclusively:

• offensive jokes or slurs about the plaintiff’s protected class,
• epithets or name calling regarding the plaintiff’s protected class,
• offensive objects or pictures relating to the protected class in the workplace, or
• physical assaults, threats, intimidation, ridicule, mockery, insults, or put-downs directed at the plaintiff on account of her membership in the protected class.

Question 45

What consitutes offensive conduct when it comes to sexual harassment?

Answer 45

In addition to the broader examples, things like:

• unwelcome sexual advances,
• requests for sexual favors, or
• other verbal or physical conduct of a sexual nature.

N.B.: This includes same-sex sexual harassment, but NOT sexual orientation.

Question 46

What does it mean to be severe and pervasive?

Answer 46

The conduct must be objectively hostile or abusive, aka pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.

Factors include:

• the severity of the conduct,
• the frequency of the conduct,
• whether the conduct was physcially threatening or humiliating, and
• whether the conduct unreasonably interfered with the plaintiff’s work performance.

Question 47

When will an employer be liable for a supervisor’s harassment?

Answer 47

1. Automatically if the supervisor engaged in quid pro quo sexual harassment that resulted in an adverse employment action.
2. Rebuttably if the supervisor’s harassment resulted in a hostile work environment but not an adverse employment action, if the employer can show by a preponderance of the evidence that
   
   1. it took reasonable measures to promptly prevent and correct the harassing behavior and
   2. the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer (reporting procedures) or otherwise avoid the harm.
3. Automatically if the supervisor’s harassment results in an adverse employment action.

Question 48

When will an employer be liable for a co-worker’s harassment?

Answer 48

If the employer

1. Knew or should have known about the harassment AND
2. failed to take prompt and appropriate corrective action.

Question 49

What is the prima facie case for retaliation?

Answer 49

The employee must show that:

1. they engaged in an activity protected by one of the discrimination statutes or Title VII,
   
   1. this includes opposing an unlawful employment practice, making a charge, testifying, assisting, or participating in an investigation, proceeding or hearing under one of the statutes
2. the employer subsequently took action adverse to the employee, AND
3. a casual connection exists between the activity and the action [AND]
4. (for Title VII only) the desire to retaliate was the but-for cause of the challenged employment action.

Question 50

What is a third-party reprisal and when can it be raised?

Answer 50

An action taken by the employer against a third-party who did not themself engage in protected activity.

The employee who did engage in the protected activity may still have grounds to file a Title VII retaliation claim as long as a reasonable employee might be dissauded from engaging in protected activity if they knew adverse action would be taken against the third party.

Also, a Title VII action may be brought by the aggrieved party who did not engage in the protected activity.

Question 51

Does it matter against whom the employee pursued a discrimination charge?

Answer 51

No. If you sue Corporation A while you’re working for Corporation B (or applying for a job with Corporation B), then Corporation B is still precluded from taking adverse action against you on that basis.

Question 52

What defense may an employer raise to a retaliation claim?

Answer 52

Once the prima facie case is met, the employer has the burden of articulating a legitimate, non-discriminatory reason for the adverse action, such as poor job performance, violation of the employer’s rules, or lack of qualifications for the position.

Question 53

How can the employee rebut the employer’s retaliation defense?

Answer 53

By showing that the employer’s stated reason is mere pretext for the real, retaliatory motive of the employer.