Employment Discrimination Outline 2

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Disparate Treatment………………………………………………….….2 Treatment………………………………………………….….2 Mixed-Motive……………………………………………………….......5 Systemic DT…………………………………………………………......7 DT…………………………………………………………......7 Disparate Impact…………………………………………………….......8 Impact…………………………………………………….......8 Retaliation……………………………………………………..……….10 Harassment Because of Sex…………………………………………....13 Harassment Employer Liability………………………………………..15 Harassment Because of Race…………………………………………..16 Sex Discrimination……………………………………………………..17 Discrimination……………………………………………………..17 Pregnancy and Family Responsibilities………………………………..19 Sexual Orientation……………………………………………………..20 Orientation……………………………………………………..20 Religion………………………………………………………………...21 National Origin………………………………………………………...24 Age Discrimination……………………………………………….........25 Discrimination……………………………………………….........25 Disability Discrimination…………………………………………........27 Discrimination…………………………………………........27 Adjudicating/Remedying Adjudicating/Rem edying Discrimination………………………….......31 Discrimination………………………….......31

 

I. FRAMEWORKS FOR UNDERSTANDING EMPLOYMENT EMPLOYME NT DISCRIMINATION I. DISPARATE TREATMENT DISPARATE TREATMENT (DT) – viewed through 3 factual and analytical lenses.

1. Single motive or pretext cases 2. Mixed or dual-motive cases; and 3. Pattern or practice cases. P is not required to specify which of these proof/analytical schemes she intends to rely upon when she files her complaint, but at some point during trial the court must determine which evidentiary scheme is appropriate to decide the case or instruct the jury. (Price Waterhouse v. Hopkins). Requires proof of intent (employer had intent to treat differently a particular member of a protected class) Majority of cases analyzed under McDonnel Douglas analysis. How to prove intent? o Direct evidence (not available in most cases) Circumstantial evidence (apply McDonnell Douglas analysis ---> if pretext o argument doesn’t work, apply mixed motive analysis). ------------------------------------------------------------------•







1. FOUNDATIONS  McDonnell Douglas Analysis: 1. Empl Employ oyee ee make makess a Prima Facie case (in a hiring context) by showing that she:

a.  is notFacie “onerous burden” (minimal showing is good enough) b. Prima Nonn-h hiFacie ring Prime – P just shows he suffered adverse employment action under the circumstances giving rise to an inference of (race, sex, etc.) discrimination. i. Was a membe memberr of a prote protecte cted d class class ii. ii. Was Was qual qualif ifie ied d for for a jjob ob iii. iii. Applied Applied for a job job and got reject rejected ed iv. Positi Position on remain remained ed availab available le 2. Employer Employer offers offers legitimate legitimate nondiscrim nondiscriminator inatory y reason (LNDR) (LNDR) for the the challenged challenged action. a. Minima Minimall showi showing ng (bur (burden den of prod product uction ion)) 3. Employee Employee rebuts employer employer’s ’s reasons, reasons, showing showing that they they are pretextual, pretextual, while while the true reason is discrimination.

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a. Burden of of persuasion persuasion (standar (standard: d: preponderan preponderance ce of evidence, evidence, “more “more likely likely than than not”) *The same framework applies to promotions, demotions, discharges (includes constructive discharges), and reductions-in-force.

Constructive Discharge:  when employee resigns in order to escape inteolerable working conditions that she is subjected to involuntarily because of her race, sex, national origin, or religion.

Constructive discharge may also arise when employee resigns in lieu of being fired.  Employee must show that: 1. The working working conditio conditions ns became became so intolerab intolerable le that a reasonable reasonable person person in in employee’s position would have felt compelled to resign; and 2. A deliberate deliberate effort effort by employer employer to force force employee employee to quit quit (some courts courts don’t don’t require proof of employer’s intent to force employee to resign). Employer’s goal is to survive SJ and get to the jury (75-80% of cases are resolved at SJ stage, less than 3% resolved after trial). 1. Evid Eviden ence ce P can can Off Offer er:: 1. Comparator Comparator evidence evidence (how (how similar similarly ly situated situated employee’ employee’ss were treated treated  



employer 2. by Treatment Treat ment of of the same employe employeee before before being being discharged discharged (showing (showing hostile work environment, comments by decision makers showing bias to protected group) Distinguish between “stray remarks” and “probative o remarks” Stray remarks are not evidence of discriminatory animus (typically, they seem to attenuated to be connected to the animus) 3. Statistic Statisticss on hiring/dis hiring/discharge/ charge/re-hir re-hiring ing (this (this evidence evidence can bolster bolster the DT DT case, but it’s much more crucial in DI cases) 4. “Me too” too” evidence evidence (showing (showing that that other other workers workers in protected protected class class were were 

also treated badly) o  Professor : US SC still struggles with whether this evidence should be allowed in. Courts try to balance relevance (to the case) with prejudice (to D) in order to decide whether “me too” evidence can be admitted. 5. General policy policy and practice practicess in relati relation on to protec protected ted group group (hiring/promotion/transfer/etc.)  2. How Employer’s Respond to requests for f or other employee’s records: 1. It’s confidential (but doesn’t work when litigation starts).  2. Narrow down the “compare-to” group (whose records are relevant). o  Employee will make broad inquiry (e.g. including all workers in protected class) but Employer may try to limit the evidence to “similarly situated employees” (Example:

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minority manager who sues might not get access to evidence on non-managerial minority workers).

Same Actor Defense:

If it is the same person who hires and fired the employee, and the period between hiring and firing is short, animus. employer is entitled to inference that the discharge was not motivated byrelatively discriminatory o  “Short period of time” is a fluid concept – some courts stretched this up to 3 years (or more) o  Courts have various approaches to this defense – some courts fully endorse it; some think that it should be left for jury to decide; and some think it’s neither a mandatory presumption nor something that should definitely be left to the jury, but think this evidence should be taken into account at SJ stage. Reverse Discrimination:  

A problem with the first prong (employee is not a member of a minority group). Many courts required white P’s to establish that D is “that unusual employer who discriminates against the majority.” o Another way to approach this issue is to keep the inquiry at showing a less favorable treatment that a reasonable fact finder could cou ld conclude was based on P’s race, color, religion, sex, or national origin.

Honest Belief Rule:  

If employer honestly believes that employment decision was correct one o ne at the time, he may be entitled to defense against finding of pretext, but this honest belief must be reasonable. o “provides that so long as the employer honestly believed in the proffered reason given for its employment action, the employee employe e cannot establish pretext even if the employer’s reasons ultimately found to be mistaken, foolish, trivial, or baseless.” Example: Employer honestly thought employee was late for work when he was not. “Employee must establish that its reasonable reliance on the facts that were before it at the time the decision de cision as made.” (Smith v. Chrysler Corp.)

CASES: • • • •

 McDonnell Douglas v. Green Texas Department of Community Affairs v. Burdine St Mary’s Honor Center v Hicks  Reeves v. Sanderson

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2. MIXED-MOTIVE Mixed Motive Analysis:  

 

 

Applies to disparate treatment (DT) cases under Title VII. Applies to cases where both legitimate and illegitimate reasons played a role in employer’s adverse action.  Professor : mixed-motive case is easier to prove and get to the jury (but damages are not

available to the employee). o  Pretext is more difficult to prove (but winning would allow the party to get damages)

Cat’s Paw Theory:  

 

 

Refers to a situation in which a biased subordinate, who lacks decision-making power, uses the formal decision-maker as a dupe in a deliberate scheme to trigger a discriminatory employment action. o Essentially when the decision is a product of o f multiple decision-makers.  Rubber Stamp – “refers to situation in which a decision-maker dec ision-maker gives perfunctory approval for an adverse employment action explicitly recommended by a biased subordinate.” (subordinate bias liability) This theory comports with basic agency principles incorporated into Title VII (“any agent” of the business). o Under certain circumstances, D may be held liable for a subordinate’s prejudice even if the manager lacked discriminatory intent.

*Employer (final decision maker) can escape liability entirely by performing independent investigation (before making adverse employment action) *Employers may be vicariously liable for actions of their employee’s – even intentional torts outside scope of employment if the employee was “aided in accomplishing the tort by existence of the agency relationship.” *if you are in HR – you don’t want HR departments rubber stamping recommendations without any independent investigation. So a good policy to have is to have the person actually hiring or firing do an independent investigation. Circuit Court’s on This Issue:  

 

 

7th Circuit Standard: issue is whether biased subordinate’s discrimination reports, recommends, or other actions cased by the adverse employment action (more than “mere influence” or “input”) 5th Circuit Standard: any influence, the reporting of any factual information, or any form of other input by a biased subordinate renders employer liable so long as the subordinate “may have affected: the employment decision. 4th Circuit Standard: employer cannot be held liable even if biased subordinate exercises “substantial influence” or plays a “significant role” in the employment decision.

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Overall: the burden is on the employer to look more closely and conduct an independent evaluation before making the employment decision.

How to analyze this problem:

1. Can she she esta establi blish sh a prim primaa facia facia case case?? a. Memb Member er of of a pro prote tect cted ed cla class ss b. advantage/benefit Didn’t receive receive a transf transfer er transfer (adverse (adversethen employment empl action) action). . If there there is aaction. material materialNot to the itoyment is an adverse employment every transfer will necessarily qualify as an AEA. c. We some things things that that give rise rise to an inference inference of discri discriminati mination on (someone (someone not in the class got hired for the position). 2. Pr Pret etex extt anal analys ysis is – a. Employer’s Employer’s legit legit nondiscri nondiscriminat minatory ory reason reason was that that it was made made on the basis basis of seniority. i. Try to show show that that in fact fact people people with with less seniority seniority had had been promoted promoted or or given advantageous jobs. ii. ii. Job desc descrip riptio tion n said said entry entry level. level. iii. Are all 5 paraleg paralegals als in the the litigation litigation departm department ent men? All All five in T&E T&E women. Although determinative these statistics statistics can be used as evidence of pretext.not determinative iv. What other outside outside candidate candidatess did they interv interview? iew? Which Which proportio proportion n were were men? 3. If the the factors factors under under 2a are in in our favor, favor, it goes goes to a jury. jury. 4. What if the the employer employer could show show that it it had promoted promoted on the basis basis of senior seniority, ity, but it it just so happened that the candidates that the the most senior were men. What does that bring to to mind? Mixed motive – can we say that that gender may have been a motivating factor. Without any other facts here – we can’t really budge the legitimate non-discriminatory reason – so we want to raise a motivating factor theory.

CASES: • •

Price Waterhouse v. Hopkins  Desert Palace v. Costa

------------------------------------------------------------------3. SYSTEMIC DISPARATE TREATMENT What is this?      

Subset of DT cases. Focuses on statistical disparities in the work force (in a particular job classification) Gross Disparities: must be probative, and it’s rarely sufficient without showing that the sample was large enough. Stats can be relevant, but in practice, these cases generally rely

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on anecdotal testimony and documentary evidence. Standing alone, stats are not likely to establish a case of individual disparate treatment. o Relevant Labor Market – this analysis typically requires an expert o Multiple Regression Analysis (MRA) – expert exp ert statistician is required. o Use of MRA endorsed by US SC in Bazemore v. Friday.

Standard Devision (SD) – benchmark is 2 SD •



Rule is if a disparity is greater than 2 SD S D from what would be predicted, the law will infer discrimination as the most likely cause of disparity: How to calculate SD (using Teamsters numbers): o SD = Square Root of (A x B x C) A – number of line drivers (1828) B – promotion of African-Americans (0.05) C – proportion of not African-Americans (0.95) o We expect that 5% x 1828 people = 911 African-American drivers. SD = 9.318 (people), 2SD = approximately 18 people. o So as long as the number nu mber of drivers falls between 91 and 73, it’s ok. If the number of drivers is less than 73, then it’s more than 2SD and is “legally   





probative disparity” First sanctioned in Hazelwood . Two standard deviations corresponds approximately to a one in twenty or 5% chance chan ce that a disparity is merely random. Most social scientists accept this as the threshold of “statistically significant.” Courts say that when results are greater than two SDs, they will draw an inference o of discrimination.

Lack of Interest Defense  

Employer may successfully argue that disparity is due to lack of interest by the protected groups (see EEOC v. Sears). o This case is sad because the stats/lack of interest might be a reflection of selffulfilling prophecy that women had (“I won’t be able to compete with sales guys”). Also criticized because it has been suggested that they were making the determinations on less than full information and didn’t believe they would get them.

*Have to prove that the policy is what is causing the discrimination. Bigger the disparity, the stronger the inference of discrimination.

CASES: • • •

Teamsters v. United States  Hazelwood School District v. United States Wal-Mart Stores v. Dukes

------------------------------------------------------------------4. DISPARATE IMPACT

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Disparate Impact (DI)  

 

It challenges a facially neutral policy that falls more harshly on o n a protected group and cannot be justified by a business b usiness necessity. Need to have some specific policy that has “adverse impact, disparate effect” on a protected group, resulting in “unintentional discrimination.” o

 

 

 

The focus is on bad consequence, not on bad intent. P doesn’t need to prove intent but needs to show: 1. There’s an effect (stats, etc.); and 2. The policy is not necessary (not a business necessity) Prima Facie (after Watson & Ward’s Cove): 1. Statistical disparity (80% rule)  2. Identify specific employment practice that allegedly caused disparity. If P wins ---> there are no damages available av ailable (only back pay)

*Class actions are frequently linked to both systemic DT and DI claims. 4/5 Rule (80% rule)  

Employee may establish adverse impact by showing that the employee’s in the protected class are hired, or pass a test, at a rate that is below 80% of the rate of the most sufcessful group. o It’s a very rough measure (rule of thumb), but it’s a prima facie evidence of DI. Example: men pass the test at a rate of 80%, women pass the test at a rate of 60%. Compare women to men: 60/80 x 100% = 75%. It is below 80% ---> satisfies the rule.  

Affirmative Defense:  

Employer can show business necessity (e.g. the test must be job-related) to justify the challenged practice. o

Test: necessity is “legitimate justification” (pretty low standard after Ward’s Cove). But Employer has the burden of proof (after the Civil Rights Act of 1991).

Test Validation:  

 

A pretty elaborate process. There are two parts of disparate impact important here. 1. Test preparation 2. Test validation In order to ensure that you can prevail on a BN Defense. They have to engage in a pretty elaborate and expensive process of test validation. Must measure whether the test comports with the actual job duties and that employees who pass the test are better aatt the  job than those who do not pass the test. o Courts have said that job validation studies are not absolutely required to make a BN defense.

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*Subjective employment practices could be challenged under the DI theory. Few subjective practices have actually been challenged under the theory because subjective practices can also generally be challenged under a DT theory and after the CRA of 1991, Ps have an incentive to bring cases under the DT rather than DI theory given that damages are available for DT cases but not for DI cases. *Burden of Proof in DI cases – after the employee makes a prima facie showing of DI, full burden of production and persuasion shifts to employer to prove business necessity – overrules one holding of Ward’s Cove. The statute also restores the meaning of “business necessity” to what it was prior to WC (though (though not entirely clear what that was). The statute also modifies the court’s requirement that P identify a specific employment practice; while the statute requires the plaintiff to identify a specific employment practice, the statute makes an exception to the extent e xtent the employer’s decision making process is not capable of separation. *Note - - -> Civil rights act of 1991: for the first time Congress codified the theory of disparate impact. It is not enough for plaintiffs to show show simply that more overtime assignments go to men than women, or even that men get a higher percentage of those assignments than their percentage in the work force. They most compare QUALIFIED QUALIFIED th men to QUALIFIED women.” Carpenter v. Boeing 456 F.3d 1183 (10  Cir. 2006).

CASES: • • • • • •

Griggs v. Duke Power Co. Connecticut v. Teal Watson v. Fort Worth Bank & Trust  Wards Cove Packaging Co. v. Atonio  Ricci v. DeStefano Vulcan Society NY Case

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II. RETALIATION Retaliation Statutory Text: (SEC. 2000e-3. [Section 704] •



(a) Discrimination for making charges, testifying, assisting, or participating in enforcement proceedings It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on—the-job training programs, to discriminate against any individual, or for a

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labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. Retaliation in General:      

A form of DT that permeates almost every discrimination claim. 70-80% of all discrimination d iscrimination claims also assert retaliation. Statutes insulate employees from any adverse employment action…even a justified criticism (employer’s complain that the retaliation statutes insulate employee’s too much!)

 Prima Facie Case of Retaliation: 1. Employee engaged in protected activity.  2. Employee suffered a materially adverse employment action.  3. Causal link between adverse employment action ac tion and the protected activity (temporal

proximity the presumption of causation)  a. Forraises time proximity – the rule is “the closer the better” (some courts say 3-4 months is not sufficiently close to establish causation in the absence of other strong evidence).  4. Employer knew about employee’s engagement in the protected activity. Framework (similar to McDonnell Douglas): 1. Emplo Employe yeee es esta tabl blis ished hed Prime Facie showing.

2. Employer Employer shows another, another, legitimate legitimate cause cause for an adverse adverse employm employment ent action. action. 3. Employ Employee ee has to prove prove pretex pretext. t. Who is Protected?  

Former employee’s, third parties (Thompson v. North Am. Stainless) + (Robinson v. Shell Oil)

 

Note that while the court in Dmedine v. Reinhardt (DDC 1978) held that th third ird party reprisals could be actionable – every court of appeals that has considered the issue has rejected the third party reprisal analysis in Dmedina.

2 Types of Protected Activity: (remember temporal proximity) 1. Part Partic icip ipat atio ion: n: (gets employee virtual immunity from adverse employment action…

*unless bad faith maybe) a. This clause under §704(a) has been construed broadly by the courts and includes filing with EEOC or participating in Title VII investigation, proceeding, or hearing.

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2. Opposition: (opposing a discriminatory action) (complaint, public protest, etc. –

protection more limited. Is the activity reasonable?) a. Manner of opposing must be reasonable; it cannot interfere or disrupt the work of other people. b. Must have reasonable good faith belief that employment practice is unlawful. Participation/Opposition Note:

Two kinds of activities are protected under the anti-retaliation anti-retaliation provision of Title VII. The participation clause prohibits retaliation because an individual “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” to enforce laws prohibiting discrimination discrimination in employment. Title VII, §704(a). The opposition clause, on the other hand, prohibits retaliation because an employee or applicant “has opposed any practice made an unlawful employment practice” Booker v. Brown & Williamson Tobacco Co (6th Cir. 1989). The clause makes it “unlawful . . . for an employer tto o discriminate against any . . . employe[e] . . . because he has opposed any practice made . . . unlawful . . . by this subchapter.” Crawford v. Metropolitan Government (US 2009) (quoting 42 U.S.C. § 2000e-(3)(a)). *US SC does not confront the line between participation and opposition in Crawford v.  Metropolitan Gov’t (page 168). Where one employee was asked to answer questions about

sexual harassment of another employee, and she answered truthfully, the Court found “implicit opposition” to sexual harassment (employee was still protected from retaliation under the statute although it wasn’t an EEOC investigation).

*Employee does not have to prove he was discriminated against when he filed with EEOC (engaged in the protected activity) ac tivity) ---> protection is assured regardless of the underlying merits of the claim. (but if Title VII complaint is not only meritless and unreasonable, but also motivated by bad faith, this activity would not be protected by the participation clause ( Mattson v. Caterpillar )). )). *Mixed-motive framework may be applicable but it’s unclear how to apply it (some courts agree th

th

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to use it, some don’t) 9 , 4 , 10  circuits apply mixed-motive analysis. *Notes – 3-6 – Two different standards now – workplace harassment in response to Title VII complaints can be materially adverse if it well might have dissuaded an employee from making or reporting discrimination,” whereas previously it had to meet Title VII’s general severe or pervasive standard. For a discussion of what constitutes ‘materially ‘materially adverse’ see string string cite at p. 188-189 Lucero case from Notes – 189 – employer can introduce evidence of later filed charges to show that employees were not in fact dissuaded. Retaliation by its agents – see note 6 – no case law but could be on exam. Note 7 is third party reprisals.  

 

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Causation: Clark County School District v. Breeden – two years will never make PFC causal link too  



attenuated. Temporal proximity. Conclusion: How to make out a case: Knowledge of internal/external complaint o o o o

Temporal proximity (has to be pretty close) Other employees have been retaliated against (a pattern) Attack the legitimate non-discriminatory reason. (Page 193)

CASES: • •

 Burlington Northern Santa Fe Railway v. White University of Texas Southwestern Medical Center v. Nassar 

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III. HARASSMENT Harassment:      

 

 

This is much more like a tort based claim. Employee is not proving pretext, but what actually happened (facts). It’s not a separate statute but an interpretation of DT statute. 1) Did something happen at work that made it substantially more difficult for the employee to perform at work? 2) Was it because employee is a member of a protected category? 3) Is employer liable for what happened? General harassment is not a crime under federal and state laws. To make harassment legally actionable, it must be traced back to a protected category. “A working environment heavily charged with discrimination may constitute an unlawful  Rogers v. EEOC) practice” ( Rogers

1. Harassment Because of Sex (2 categories): 1) Quid Pro Quo: a. Explicit situation, where sexual compliance is exchanged for an employment opportunity b. If done by supervisor there may be vicarious liability liability for the employer. 2) Hostile Work Environment (HWE): a. Usually a course of conduct (remarks, actions of a sexual nature). b. It is a persistent condition of work that changes the terms terms and conditions conditions of employment (it does not have to result in the ultimate employment action, such as firing or refusing to promote).

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c. Sometimes, one instance is good enough if it’s physical and extreme (i.e. being forcefully kissed). d. Agency principles apply (see Meritor). Change in terms or conditions of employment  can be established by:

1) A tangible tangible economic economic loss loss (being (being fired, fired, not promoted, promoted, etc.) etc.) 2) If there’s there’s no tangible tangi ble economic econom ic loss, the conduct must musinstability t be sufficientl sufficiently y severe or pervasive (may include emotional andthe psychological but injury doesn’t have to be at the level of nervous breakdown). What conduct is “sufficiently severe or pervasive”?:    

   

 

Physical contact/touching (1 instance can be enough) Remarks/verbal (no touching) – if there’s an expectation expec tation of several instances to show a pattern of conduct (though, it’s not clear how many would be enough). Pervasive is a high standard. “One free grab” theory of sexual harassment is there. To the extent that it is violent – this will be key. (Cornered, in a private place, a threat element, etc.) Generally that kind of conduct is considered severe. Note that a lot of SH cases c ases fail to get past SJ on the g grounds rounds that no reasonable jury could find that the alleged activity was severe or pervasive.

What conduct is “unwelcome”?: some court spend a lot of attention on the P’s behavior  

 

 

US SC did not define it in precise terms: this term opened the door to emp employer’s loyer’s trying to show that the challenged conduct was “welcome,” which puts employee in uneasy place (to prove it was “unwelcome”) When is P’s behavior subject to critique?  Meritor  –  – said “provocative speech and dress is not irrelevant as a matter of law.” Court generally looks at this in the totality of the circumstances o Did she think it would get worse wo rse if she didn’t go along with it? What if she was  just silent?

Defenses:

1) Denial Denial (this (this never never happ happened ened)) 2) Attack on the the evidence of “unwelcom “unwelcomeness” eness” (seeki (seeking ng discovery discovery on employee’s employee’s prior prior sexual behavior to show that employee showed that she either welcomed the alleged sexually harassing conduct or was not subjectively offended by the conduct). 3) The conduct wasn’t wasn’t work-rel work-related ated (employer (employer not respons responsible ible for some some other employee employee’s ’s non-work activity). 4) It wasn wasn’t ’t seve severe re or pervas pervasive ive.. 5) WE can’t be be held responsib responsible le for these these unauthorize unauthorized d acts of our our employees. employees. a. Think sending sending around around suggestiv suggestive/porn e/pornographi ographicc emails emails – employers employers will will say “how “how can we police this?”

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*Federal Rules of Evidence 412: The presumption is that P’s own sexual conduct is not relevant in sexual harassment lawsuits. The balance weighs in favor of P to keep this sort of evidence ev idence out (e.g. showing that the sexual advances advanc es were previously “welcome” by P). However, this evidence might end up being admitted if the opposing party shows (and judge agrees that) it’s relevant.

*Next problem to face is when liable.some Individual supervisors are and a generally not liable under Title the VII employer (althoughshould you canbeunder common law theories number of state law claims). How to differentiate between just comments/jokes from sexual harassment?   Court in Harris suggests looking at frequency, severity, whether there was “heavy

pollution” of work environment with discrimination/ it permeated the whole environment, making it “hostile and abusive” (no single factor is required – it’s a totality of circumstances approach). o Prof: Sexual harassment cases are very fact-specific. Examples of “severe” Conduct: • • •







A single act of rape is “sufficiently severe” ( Ferris v. Delta Airlines) Multiple rapes of employee in one night ( Little  Little v. Windmere Relocation) Forced tongue down employee’s throat (once) and an attempt to unfastern employee’s bra next day was “sufficiently severe” ( Hostetler v. Quality Dining) A single attempt to fondle employee’s breast was not sufficiently severe to constitute hostile work environment ( Brooks v. City of Mateo) President’s three propositions for sex to his subordinate in one meeting was “severe” “ severe” enough (Quantock v. Shared Mktg. Servs) Stroking a leg, attempt to kiss, exposing his penis and asking employee to k kiss iss it was not “severe” enough ( Jones  Jones v. Clinton).

Examples of “pervasive” Conduct: •





Repeated remarks that belittled employee because she was a woman along with physical threats were “severe or pervasive” ( Smith v. First Union Bank) Coworker’s boorish and offensive comment, staring and touching of employee’s arm was not “severe or pervasive” (Shepherd v. Pub. Accounts of Tex.) Frequent conduct, its context, and the physical nature of some acts co complained mplained of met the threshold of “severe or pervasive” ( Schiano v. Quality Payroll Sys.)

Chart: as severity goes down, frequency needs to go up.

CASES: • •

 Meritor Savings Bank, FSB v. Vinson  Harris v. Forklift Systems

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2. Employer Liability 1) If it is a tangible employment employment action action by supervisor supervisor – employer is liable liable (strict (strict liability) liability) 2) If no tangible tangible employmen employmentt action action – employer employer has an affirmat affirmative ive defense defense a. Employer Employer must show show that there there is a system system in in place to report report harassm harassment ent and also also nd

show that employee failed to use it (there may be some excuses to the 2  prong, e.g. fear of retaliation). Who is a supervisor? •

If it’s a co-worker – the standard is simple negligence – employer knew or should have h ave known that the harassing behavior was taking place and didn’t do anything. In that situation the burden is on the employee. If the employer is raising it as an af affirmative firmative defense than the burden is on the employer. Supervisor is someone who can recommend or undertake tangible employment o action. Also someone who can direct your daily work. Someone who is in a position that enhances his or her ability to engage in harassment. Someone who one would be reticent to object directly to, unlike a co-worker. However, note that in cases like Harris – where the harasser is the president – the actions may be seen as being co-terminus with the actions of the company. The Ellerth-Faragher defense is a widely utilized defense – it has a number of different prongs that need to be considered separately. o



*Note 5 – first prong of Farragher-Ellerth defense: 

In considering whether an employer has met its burden of proving the first prong – that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior” – a number of factors may be relevant: Antiharrassment policies (the reasonableness of a complaint mechanism depends on the employment circumstances including the known vulnerabilities and capabilities capab ilities of the class of employes in question (EEOC v. V&J Foods [7th cir. 2007]). You don’t necessarily need a formal policy po licy (Hall v. Bodine (7 th Cir. 2002), and the existence of a formal SH policy does not always mean the employer will meet its burden under the first prong. Disseminating and Implementing is KEY – for how the cases have gone see 564 middle paragraph. o What about if the reportee doesn’t report up the chain of command; will knowledge bee imputed to the employer? See 564-565 has gone both ways. o Employer responses to complaints – once an employer receives a complaint of a hostile work environment created by a supervisor, it must take affirmative steps to investigate and, if necessary, take corrective action ac tion in order to avoid liability. What is sufficient corrective action? – see 565 middle of the page. o SH training programs – “favorable evidence that for employers that reasonable steps had been taken to prevent or correct harassment.”

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*Note 6 – 566 second prong – failure to use the employer’s complaint procedure

Failure to use the employer’s complaint procedure – this will normally suffice to satisfy the employer’s burden under the second element of the defense.” Faragher . Failure to take advantage of the corrective opportunities provided by the employer

CASES: • • • •

 Burlington Industries v. Ellerth Vance v. Ball State University Faragher Case Pennsylvania State Police v. Soutters o  Note 5 and 6 

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3. Harassment Because of Race •

Same-race harassment is actionable after Oncale decision. o









Oncale Also that severity or(Page pervasiveness of a HWE is evaluated in light of the totality of held the circumstances. 595) Appropriate standard to be applied in a HWE racial harassment claim is that of a “reasonable black person” (Page 592). Same and cross-race harassment is also actionable (“Use of racially charged ch arged words to goad both black and white employees makes such conduct more outrageous, not less” Page 598) o Court rejects an “equal opportunity harasser” defense. Such conduct makes the harassment more outrageous not less so. Reverse racial harassment is actionable (white employee, whose African-American supervisor called her “white bitch”) Displays of racist symbols (e.g. nooses) – also actionable as creating HWE.

*Tangible employment action = significant change in employment status such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, changes in benefits.

CASES: •

 Harris v. International Paper Co.

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II. SPECIFIC CATEGORIES OF DISCRIMINATION IV. SEX DISCRIMINATION •





Employer may not take gender into account in making an employment decision (except the narrow circumstances circumstances in which gender is a BFOQ) Sex stereotyping is not permitted as basis for employment decisions. Remarks at work that are based on sex stereotypes do not inevitably prove that gender played a part in a particular employment decision. These remarks can offer evidence; but bu t P ultimately must show that employer o relied on her gender when making its decision P relied on expert testimony of social psychologist to show sex stereotyping.

How Employee can show discrimination because of sex? 1. Direct comparative evidence (how the harasser treated members of both sexes) 2. Explicit or implicit proposals of sexual activity. 3. Hostility toward that person’s sex 4. Evidence of sex stereotyping (e.g. a man has to be very masculine; if he’s not, he may be

harassed) Privacy – you are going to a weight loss spa – it is exclusively for women and they h hire ire only

women attendants. The justification is not because the women who go to tthe he spa prefer to have female staff, but because they are scantily clad, the attendants are touching them, physically intimate contact, etc. Cases have been a little bit bit mixed on this – the the big case settled. The EEOC has a rule, •



that some of these single sex operations try to use, “where it is necessary for the purposes of authenticity or genuineness, they will will consider it a BF BFOQ” OQ” See p. 379. E.g. an actor or an actress. Is there a factual basis to believe that that shows this will hurt the business.

*What about a men’s clothing store, says they only want to hire men becau because se they are models for the clothes. Probably not – what is the essence of the business that’s going on – •

*What about saying we’re not going to have female associates do transactional deals with foreign, male dominated companies in foreign foreign countries. What all the international company has said – as long as it’s a US company, we’re not going to allow other countries to dictate/reinforce stereotypes.

17

 

• •

So generally these types of “preferences” will not hold up. So customer preference is a really hard route to go, and will not normally survive as a  justification for a discriminatory discriminatory gender policy.

*Classic BFOQ case that has yet to be resolved is Hooters – hiring only women women waitstaff. They are offering “vicarious sexual recreation”. *Remember BOFQ does not apply to race. race. What about national origin? We’ll We’ll talk about this later. *Family Discrimination – PDA – on slide – amendment to to Title VII passed in 1978. Prior to its passage and Gilbert   it it was generally assumed that discrimination on the basis of pregnancy p regnancy was discrimination on the basis of sex. Gilbert  held  held otherwise. •

BFOQ (The Bona Fide Occupational Qualification Defense) -§703(e)(1) of Title VII • •

• • •



• •



applies to faciall disc!i"inato! polic# it$s "o!e st!in%ent standa!d It$s not unla&ful to hi!e and e"plo e"ploees on the 'asis of !eli%ion se o! o ! national o!i%in in those ce!tain instances &he!e !eli%ion se o! national o!i%in is a BFOQ !easona'l necessa! to the no!"al ope!ation of that pa!ticula! 'usiness o! ente!p!ise*  +ote that !ace cannot 'e a BFOQ BFOQ has a ,e! na!!o& !eadin% Occupational. "eans o'/ecti,e ,e!ifia'le !eui!e"ents that "ust conce!n /o'-!elated sills and aptitudes (ualifications that affect an 2e$s a'ilit to do the /o') Disc!i"ination unde! the safet eception to the BFOQ is allo&ed onl &he!e a /o' ualification "ust !elate to the essence. o! to the cent!al "ission of the 2!$s 'usiness. (see Johnson Controls) BFOQ &o!ed fo! acto!s (nat$l o!i%in) 'ut didn$t &o! fo! ethnic !estau!ants In %ene!al custo"e! p!efe!ence is not enou%h to clai" BFOQ eception (e*%* u!,es %" tain% onl fe"ale pe!sonal t!aine!s)* 4!i,ac-'ased BFOQ 5 a petition si%ned ' 10000 custo"e!s &ho said the &ould not co"e to the health clu' if "ale t!aine!s &o!ed the!e &as %ood enou%h (this case settled)*

*For facially neutral employment policies, need to apply “business necessity” defense (less stringent standard) *An example of successful safety-based BFOQ is  Dothard v. Rawlinson, where Ct allowed Er to hire only male guards in contact areas of maximum-security male penitentiaries. Sex was a BFOQ b/c the employment of a female guard would create real risks of safety to others if violence broke out b/c the guard was a woman (the concern for woman’s own safety would not  justify BFOQ use). CASES:

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• • • • •

Price Waterhouse v. Hopkins ONCALE v. Sundowner Offshore Services, Inc.  International Union, United Automobile Workers v. Johnson Controls Southwest Airlines Case  Jesperson

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V. PREGNANCY AND FAMILY RESPONSIBILITIES (a) 4D6 (4!e%nanc (4!e%na nc Disc!i"ination Disc!i"inatio n 6ct) - o on% n%!e !ess ss pa pass ssed ed it it to to o,e! o,e!!u !ule le General Electric Co v. Gilbert  (&he!e  (&he!e st!an%el enou%h * t* said that disc!i"ination a%ainst p!e%nant pe!sons isn$t se disc!i"ination '8c not all &o"en a!e p!e%nant) - It$ It$ss an an eualit eualit statut statute e not acco""odatio acco""odation n statute* statute* 2! 2! does not ha,e ha,e to acco"" acco""odate odate fo! fo!  p!e%nanc* - +o +o!" !"al al p!e p!e%n %nanc anc  9 disa disa'i 'ili lit t unde unde!! 6D6 6D6 - o o" "plic plicat ated ed p! p!e% e%na nanc nc  5 "a "a 'e* 'e* :iftin% Boes ;po< p!e%nant 2e ass to 'e t!ansfe!!ed to anothe! /o' '8c she cannot lift hea,  'oes 5 2! !efuses to t!ansfe! (2e has to uit as a !esult)* !esult)* ;o& to p!o,e the case unde! 4D6= - sho& ad,e!se e"plo"ent action (const!ucti,e discha!%e) - sho& that 2! ne& 2e is p!e%nant p!e%nan t - sho& co"pa!ato! e,idence (anothe! 2e &ith si"ila! disa'ilit disa'ilit. . &ho ased to 'e t!ansfe!!ed to anothe! /o' and 2! did it)*  +> :a&< p!ohi'its disc!i"ination '8c of '!eastfeedin% 'ut the!e$ the!e$ss no fed* :a& fo! this*

* Er’s rule that prohibited mothers of preschool age children from holding certain positions was a prima facie violation of fed. Law (sex discrimination, if fathers of young children were permitted to hold these positions) – see Phillips v. Martin Marietta Corp . -Despite of evidence of the existing employment discrimination against caregivers, no federal law explicitly prohibits discrimination on the basis of family responsibilities. FMLA (Family Medical Leave Act of 1993) • on%!ess passed it to patch a hole in 4D6 (eual t!eat"ent fo! p!e%nant people 'ut no special acco""odations) 6llo&s fo! special acco""odation fo! fa"il o! p!e%nanc !elated lea,es and adoption • It$s a statuto! statuto! %ende!-neut!al la& that allo&s fo! 1 1? ? &ees unpaid lea,e (du!in% an 1?• "onth pe!iod) • 6s a %ene!al !ule e"ploee !etu!nin% f!o" F@:6 lea,e is entitled to !einstate"ent to

he! fo!"e! /o' o! an eui,alent position (if the o!i%inal position is no lon%e! a,aila'le)

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• • • •

2"ploee on F@:6 lea,e cannot lose 'enefits acc!ued p!io! to the sta!t of lea,e and 2! "ust "aintain e"ploee$s 'enefits unde! a p!ope!l !eco%niAed %!oup health plan at the sa"e le,el and unde! the sa"e te!"s as thou%h e"ploee continued to &o!* It applies onl to se!ious illness It applies to 2"ploe! &ith 50 &o!e!s o! "o!e 2"ploee "ust ha,e &o!ed fo! a ea! to 'e eli%i'le* 2"ploee doesn$t ha,e to ehaust ad"inist!ati,e !e"edies 5 can %o st!ai%ht to cou!t to sue 2"ploe! fo! F@:6 ,iolation

Pregacy ad t!e "ter#lay $%& 'itle "" (PA)* FMLA* ad AA (#+ ,,9) < FMLA< 2! "ust p!o,ide unpaid lea,e fo! 2e$s &ith se!ious "edical conditions PA< !eui!es 2! to t!eat p!e%nant 2e$s the sa"e as othe! 2e$s acco ""odations fo! 2e$s &it &ith h disa'ilities &ho a!e AA< !eui!es 2! to "ae !easona'le acco""odations othe!&ise ualified fo! the /o' Pregacy der AA. 22O !e%ulations inte!p!etin% the 6D6 state that conditions such as p!e%nanc that a!e • not the !esult of phsiolo%ical diso!de! a!e not i"pai!"ents*. 4!e%nanc 4!e%nanc  can 'e ,ie&ed as a phsiolo%ical condition 'ut it is not a diso!de! o! i"pai!"ent* Based on these !e%ulations "an cou!ts denied 6D6 clai"s of p!e%nant &o!e!s* Othe! cou!ts applied "o!e nuanced analsis findin% that 22O !e%ulation does not eplicitl eclude p!e%nanc-!elated i"pai!"ents p!o,ided the a!e the !esult of a phsiolo%ical diso!de!*. Pregacy der FMLA. :a'o! Dep$t !e%ulations clea!l pe!"it F@:6 lea,e fo! p!e%nanc-!elated health • conditions*

CASES: • • •

Troupe v. May Department Stores Co. Chadwick v. Wellpoint, Inc.  AT&T v. Hulteen

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VI. SEXUAL ORIENTATION  

There is no federal law that prohibits employment discrimination d iscrimination because of gender identity or sexual orientation. However, some states (including NY) passed state laws that have gender identity discrimination statutes.

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Some courts used Price Waterhouse’s prohibition against “sex based stereotyping” to rule for P’s in cases where it’s clear that the reason P was discriminated against was actually P’s sexual orientation. o Other courts rejected this approach and refused to “boot-strap” sexual orientation into Title VII protections. Title VII does not protect employees from being discriminated against because becau se they are transsexual (Ulane v. Eastern Airlines) Courts adopted 3 approaches to discrimination because of sexual orientation: 1. Anti-bootstrap stance (sex orientation is not protected by Title VII) 2. Smith approach (Title VII protects people from sex stereotyping regardless of their gender identity or sexual orientation – using Price Waterhouse argument) 3.  Billington approach (it is sex discrimination per se) P’s may also true sue using EPC challenge under 14th Amendment (if State is employer) or state laws.

>ou >o u a!e %a. ;po< 2e is %a 'ut his appea!ance is confo!"in% to his se# he is not n ot su'/ect to an ha!ass"ent •

at &o!* ;e applies fo! p!o"otion and du!in% the inte!,ie& 2! tells hi" >ou >ou a!e %a no  p!o'le" &ith us 'ut &e cannot %i,e ou this position '8c &e need so"eone (hete!oseual) &ho could !elate &ell to othe! eecuti,es*. In this scena!io 4 cannot succeed in clai"in% se* disc!i"ination unde! Title VII (onl state la& if it eists)* e,e!se eual O!ientation Disc!i"ination (p* C) t found the!e$s a %enuine issue of "ate!ial fact on &hethe! a fe"ale hete!oseual he te!oseual &o!e!  &as ha!assed 'ecause of se. &he!e offensi,e conduct of les'ian co-&o!e!s &as alle%edl "oti,ated ' seual desi!e ( Dick v. Phone Directories) 4 a hete!oseual fe"ale &ho clai"ed se* disc!i"ination ' %a "en co-&o!e!s &ho displaed nude pictu!es of "en at the &o!place to &hich she o'/ected failed to p!o,e she &as su'/ected to hostile &o! en,i!on"ent* The offendin% conduct &as neithe! se,e!e •



enou%h to 'e fe"ale actiona'le unde! ha!ass"ent &aso!dinance it 'ased on he!co,e!ed seual as a hete!oseual (4 a!%ued ,iolation of no! a local that co, e!ed o!ientation se* o!ientation)* ee Brennan v. v. Metro. Metro. Opera*

CASES: Ulane v. Eastern Airlines • • •

Smith v. City of Salem, Ohio  Rene v. MGM Grand Hotel, Inc.

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VII. RELIGION Title VII §701(/) C? E*** §?000e(/) The dut not to disc!i"inate on !eli%ious %!ounds includes inc ludes an o'li%ation on the pa!t of 2! to "ae !easona'le acco""odations to the !eli%ious needs of 2e$s &he!e such acco""odations can 'e "ade &8o undue ha!dship on the conduct of the 2!$s 'usiness* eli%ion includes all aspects of !eli%ious o'se!,ance and p!actice as &ell as 'elief  •



/eligio #ractice% o$ervace. • annot 'e a "atte! of pe!sonal choice# it "ust 'e a con,iction sha!ed ' a %!oup !elated to acti,ities8 %!oup cultu!e ('ut it doesn$t ha,e to 'e &!itten in the 'oo) @o!al8 ethical ,ie&points "a ualif unde! 22O !e%ulations# 'ut cou!ts a!e "o!e • hesitant a'out it an 'e anti!eli%ious (atheis" is O) • • It doesn$t ha,e to 'e o!%aniAed !eli%ion 'ut "ust 'e "o!e than pe!sonal 'elief  • ou!ts &ill not uestion !eli%ious 'eliefs (e*%* sain% Isla" does not !eui!e to &ea! &ea ! headsca!,es.) 'ut &ill uestion since!it of 2e in 'elie,in%* This could 'e a %ood defense fo! 2!* (can uestion since!it 'ut not ,e!acit of !eli%ious 'elief)    Prima Facie ad aalyi. 1* 2e esta esta'l 'lis ishe hed d Prima Facie   - 2e had a 'ona fide !eli%ious 'elief that conflicted &ith an e"plo"ent !eui!e"ent   - 2e info!"ed 2! of this 'elief    - 2e &as disciplined fo! failin% to co"pl &ith the conflictin% !eui!e"ent of e"plo"* ?* 2! sho&s sho&s that !easona'l !easona'lee effo!ts effo!ts &e!e "ade "ade to acco""odate acco""odate 2e 2e o! it &as undue undue ha!dship ha!dship 1 to acco""odate (need to 'e 'usiness-!elated ha!dship )   - anthin% a'o,e de minimis is liel satisf undue ha!dship (,e! lo& standa!d) 3* 2e disp disp!o !o,e ,ess this this as as p!et p!etet et How is it different – involves a degree of choice (not immutable), requires reasonable accommodation. What is a religion? Sincerely held belief – see EEOC regs – 633. What you are looking for is something that tha t addresses the same moral and ethical concerns that organized religion does. What about someone who wants Halloween Ha lloween off because she is Wicken You’d have to know more about wicken practice but probably – employers should o not treat these claims lightly. But see Note 1 p. 634. •







1 Prof. mentioned Costco case (no facial piercing as the look policy for cashiers; ee claimed religious exception). Er argued their need for “professionally looking staff” made it undue hardship to accommodate for Ee’s facial piercing required by religious belief. Ct ruled for Er although the reason articulated by Er was not really related to the job function of a cashier (or the look of professional cashier?). In another case, Ct ruled for Ee whose small tattoo inscription around the wrist (religious Ancient Egyptian meaning) was found to not present an undue hardship to accommodate for the Er, a restaurant that prohibited its Ee’s from having visible tattoo. Ct. said Er was unreasonable (besides, no one even noticed that ee had a tattoo until 6 months into the employment).

22

 

Note – non-religious views are also protected – reverse religious discrimination. Exemptions – Religious Entity Exemptions – p. 636. o



Ministerial exemption – goes beyond Religious Re ligious Entity Exemption – in the hiring and firing of

clergy, or other church employer who have a religious mission. Title VII doesn’t apply even with regard to to sex and race discrimination. Supreme Court has not directly ruled on. Some courts recognize it with regard to hiring and firing but not to harassment. Basic theory is that free exercise trumps title VII in this regard. Miiterial ece#tio Gud%e-"ade la&# 1st 6"en*(f!eedo" of !eli%ion) t!u"ps Title VII • F!ee ee!cise clause (1 st 6"end*) p!ecludes /udicial !e,ie& of decisions ' !eli%ious • entities conce!nin% the te!"s and conditions of e"plo"ent of thei! "iniste!s* • It is etended to cle!% and 'eond (in so"e ci!cuits) ?d i!* 5 does not !eco%niAe this eception • eli%ious 'eliefs do not ecuse nonco"pliance &ith %ene!all applica'le state la& • ( Empl.  Empl. Division Dep’t Dep’t of !man "eso!rces of Ore#on Ore#on v. $mith $mith) '!e religio etity eem#tio. Title VII p!o,ides t&o '!oad ee"ptions fo! !eli%ious e"ploe!s? 5 §70?(a) Title VII shall not appl to a !eli%ious co!po!ation association educational institution o! • societ &ith !espect to the e"plo"ent of indi,iduals of a pa!ticula! !eli%ion to pe!fo!" &o! connected &ith the ca!!in% on o n ' such co!po!ation association educ* institution o! societ of its acti,ities* a cti,ities*

§703(e)(?) It shall not 'e an unla&ful e"pl* p!actice fo! a school colle%e uni,e!sit o! othe! educ* institution Hin &hole o! in su'stantial pa!t o&ned suppo!ted cont!olled o! "ana%ed "an a%ed ' a •

 pa!ticula! !eli%ion to hi!e and e"plo e"ploees of a pa!ticula! !eli%ion !eli%ion Jou!ts st!u%%led ho& '!oadl o! na!!o&l inte!p!et these eceptions in li%ht of potential conflicts &ith constitutional p!otection of the 1st 6"en* (F!ee 2e!cise and 2sta'lish"ent lause) and also the fact that the!e is no ep!ess ee"ption fo! !ace colo! se o! national o!i%in (onl !eli%ion)* The leadin% * t* case is Corp. of the Presiding Bishop v. Amos (non-p!ofit ente!p!ises ope!ated ' !eli%ious o!%aniAations "a disc!i"inate on the 'asis of !eli%ion in "ain% e"plo"ent decisions* §70? of Title VII does not ,iolate the esta'lish"ent clause of the 1st 6"end 5 see the application of %emon test p* K37)

2 Religious schools fall under both exceptions. 23

 

CASES: • • • •

 EEOC v. Abercrombie & Fitch Stores, Inc. Trans World Airlines, Inc. v. Hardison  Hosanna-Tabor Evangelical Lutheran Church Chur ch v. EEOC  TWA v. Hardison

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VIII. NATIONAL ORIGIN •

• •



• •



It$s a ,e! epansi,e definition# it can "ean ancest! (lie 10 %ene!ations a&a)# it co,e!s  phsical cha!acte!istics lan%ua%e cultu!al cha!acte!istics etc*  +ati,e 6"e!icans 6"e!icans a!e co,e!ed It doesn$t enco"pass citiAenship (need to a!%ue that citiAenship &as p!etet fo! national o!i%in=) The!e is a split '8& the ci!cuits a'out &hethe! undocu"ented &o!e!s can sue 'ased on Title VII* VII* @ost cou!ts find that the can sue on othe! %!ounds (e*%* !ace and %ende! disc!i"ination) Theo!ies defenses and analses of DT and DI cases c ases appl fo! national o!i%in 2"ploe! that !eui!es its 2"ploee$s to 'e a'le to spea 2n%lish &ell as a condition of e"plo"ent "a face a clai" of o f disc!i"ination 'ased on national o!i%in* If the !eui!e"ent is applied to a non-2n%lish speain% 2"ploee as opposed to a 'ilin%ual 2"ploee "ost cou!ts su%%est usin% DI "odel '8c the !eui!e"ent &ill ha,e a dispa!ate i"pact 'ased on national o!i%in* 2n%lish-onl. polic ac!oss the 'oa!d is i"possi'le to /ustif (unde! 22O !e%ulations such polic is enou%h to esta'lish a p!i"a facie case of dispa!ate i"pact)*

*Defined – where the employee came from – how they are, how they dress, very broad – you

don’t have to be born in a different country – as long as you identify with that group. Note there may be a lot lot of overlap in in religion/national origin/race. See. P.684. *Discrimination based on citizenship is OK so long as it is not a pretext for discrimination based on national origin (applied equally). equally). Note however that under the NYCHRL citizenswhip is a protected category. *Applicability of Title VII to undocumented workers – used to be presumed – but Hoffman Plastics USSC held that NLRB doesn’t apply to undoc workers – since then some courts have held that Title VII doesn’t apply – some courts c ourts have held it does. Accent Discrimination – she didn’t ask us to read this. •

Court says this is direct evidence of discrimination –In re Rodriguez (6 Cir 2007). Bottom line is that an employer can base an employment decision on accent, but only if

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affected non-accented oral communications is required to perform the job duties and the accent materially interferes with the persons ability to communicate in English. This is a pretty easy standard for employers to meet because they can say, even in jobs that doesn’t require direct customer contact, the ability to be understood in English is important in lots of jobs (communicate and be understood by supervisor, subordinate, etc.).

*See revised EEOC regs at 722. – Says English-only creates PFC by courts have by and large declined to adhere to these. CASES: • • •

Pacheco v. NY Presbyterian Hospital  EEOC v. Sephora USA, LLC   In re Rodriguez – Accent Discrimination from Outline

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IX. AGE DISCIRMINATION •





• • • • •



The person replacing you doesn’t have to be younger than 40 – but the disparity probably has to be around 10 years or more to create the “inference of discrimination” If you can prove that the violation was willful, you can get up to an additional 50K in liquidated damages. What’s different about age discrimination. It is something that applies across the board. What about age is different? In general gene ral – judges and the legislature say that aage ge is not necessarily unrelated ot job performance. It’s separate (from Title VII) statute that was passed in 1967. Protected group is employee’s 40 years or older. Statutory minimum 20 employees Both DT and DI theories can be used, but most cases are brought under DT theory. Supreme Court hasn’t decided whether McDonnell  Douglas Douglas framework applies to ADEA but lower courts use it (as well as some forms of  Burdine and St. Mary’s v. Hicks   analysis). Under McDonnell Douglas (if no direct evidence of age discrimination): 1. Employe Employeee establ establish ished ed prim primaa facie. facie. 2. Employer Employer responds responds with with legitimate, legitimate, non-dis non-discrimi criminatio nation n reasons reasons (burden (burden of production) 3. Employee Employee has the the burden burden of proof proof to show show pretext pretext and and that age age was the the true reason for the action.

25

 

Prima Facia for ADEA claims: • • •

Employee is member of protected class and was qualified for the job. Employee was subject to an adverse employment action. Under circumstances that raise an inference of age discrimination (typically, replaced by younger worker) What if a younger worker is also member of the protected class (e.g. 59 year old o is replaced by 43 year old). Some courts say the replacement does not have to be under 40, but use the standard of “substantially younger” (Courts var vary y – 10-year difference was found to be “substantial,” 5-yrs – not enough).

- @ied "oti,e analsis is not applica'le (a%e "ust 'e 'ut-fo!. cause) 5 see Gross case The!e is no acco""odation !eui!e"ent fo! olde! people unde! the 6D26* 2L< if a test is /o' !elated !easona'le and olde! &o!e!s fail it the 6D26 &on$t 'e a'le to p!otect the"* usto"e! p!efe!ence (e*%* fo! oun%e! people) 5 cou!ts a!e not so %ene!ous & &ith ith it* * t* held that 11th 6"end* Ba!s state e"ploees f!o" '!in%in% p!i,ate actions fo! "oneta! da"a%es a%ainst non-consentin% states fo! ,iolations of the 6D26 ( Kimel  Kimel v. Florida Board Board of  Regents) BFOQ •



2"ploe! a!%ued the &anted pilots unde! M0 '8c !eaction ti"e %ets slo&e! and a'ilit to thin faste! dete!io!ates* t found this a!%u"ent as faciall disc!i"inato! N unde! BFOQ 2"ploe! had to loo at specific duties the pilots "ust pe!fo!" and see ho& 2"ploee$s o,e! M0 pe!fo!" the" ( &'( v. &h!rnston) One of the eceptions &hen a%e !est!ictions a!e allo&ed a!e police office!s and fi!e fi%hte!s ('8c of pu'lic safet issues)*

"terectioality #ro$lem • 6%e P %ende!# ho& is disc!i"ination a%ainst olde! &o"en analAed= ts analAe each clai" sepa!atel and as fo! p!oof unde! each cate%o!* o if 2! sho&s that olde! "en a!e  p!o"oted and &o"en a!e p!o"oted 2e (olde! &o"an) &ill ,e! liel lose he! case* Proy for age dicrimiatio.  pe!cei,ed as less p!oducti,e and8o! less c!eati,e •  pe!cei,ed as ha,in% li"ited sills and8o! a'ilit to acui!e sills sills •  pe!cei,ed as no lon%e! fittin% into the o!%aniAation •

*Prof: Cost cutting is a legitimate basis for eliminating older workers, wic is *Prof: pretty uni!ue" P#$, for e%ample, would not allow for suc ting (e"g", let&s get rid of all pregnant work workers ers b'c tey cost too muc)"

26

 

*Prof: practitioners say tat mi%e *Prof: mi%ed d motie is confusing for uries anyway, and age discrimination cases preail at iger rates tan gender and race discrimination cases een after ross (so, it seems tat Gross caused less damage tan it seemed)" *+nder te $#$, it sall not be unlawful for an employer to take any action oterwise proibited- were were te di.erentiation is based on reasonable factors oter tan age" /F0$ is a lower standard tan business necessity 1 r  ust needs to sow tat te action was reasonable" reasonable" *Ct" recogni2es tat age is di.erent from oter protected categories in tat it may a.ect some work related abilities and tus render certain employme employment nt criteria as reasonable (ence, lower standard for /F0$ defense)" CASES: •  • • • •

Sperling v. Hoffman-La Roche  Hazen Paper v. Biggins Gross v. FBL Financial Services Smith v. City of Jackson, Mississippi  Meacham v. Knolls Atomic Power Laboratory

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X. DISABILITY DISCRIMINATION •







Americans with Disabilities Act (ADA) prohibits discrimination against qualified individuals with a disability a. Structure is identical to Title VII – same enforcement, exhaustion of administrative remedies requirement, same number of employees, same remedies available b. Private employers with 15 or more employees ADA passed in 1992 c. Predecessor was Rehabilitation Act – applied only to federal employers and those receiving federal funding (schools, hospitals, prisons, etc) d. Changed “handicapped” to “disabled” Threshold issue of who should be covered under ADA – unlike other types of discrimination e. ADA also requires requires accommo accommodation dation (only seen in religi religion) on) f. Reasonable Reasonable accommodatio accommodation n language language of ADA is is differe different nt fr from om religi religion on because there is no de minimis cost language in ADA like religion Prima facie case g. Disabi Disabilit lity y within within the the meani meaning ng of the the ADA ADA

27

 



h. Qual Qualif ifie ied d indi indivi vidu dual al i. Suffered Suffered an adverse adverse employment employment action as a result result of the disabil disability ity i. ADA doesn’t doesn’t include include motivati motivating ng factor factor language language so disabili disability ty has to be the the but-for cause – like in age discrimination (not decided by Sup Ct yet) Definition with ADA  j. Qualified individual with a disability is an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires k. Disability is defined as: ii. A physical or mental impairment that substantially limits one or more major life activities of such individual; “Substantially limits” means unable to perform a major life activity that the average person in the general population can perform iii. A record of such an impairment (history of disability); OR iv. Being regarded as having such an impairment l. Section Section 511 excludes excludes the the followi following ng from from “disabil “disability” ity” – homosexua homosexuality, lity, bisexuality, transvestism, transexualism, pedophilia, exhibitionism, •

voyeurism, gender disorders compulsive not resultinggambling, from physical impairments, other identity sexual disorders, kleptomania, pyromania, and psychoactive substance use disorder resulting from the illegal use of drugs v. Woul Would d alcoh alcohol olis ism m be cover covered ed?? Recovered drug addicts are covered if they are participating in a program of rehab vi. HIV infe infecti ction on is a disab disabili ility ty – held held by Sup Ct in Bragdon v. Abbot, 1998  m. Accommodatio Accommodation n – Section 102(a) – no covered entity entity should discrimi discriminate nate against qualified individual with a disability vii. Employer Employer must make reasonabl reasonablee accommodatio accommodations ns for disabled disabled employees employees •

ADA Amendments of 2008 a. Now disability has to be considered without regard to the mitigating measures 

viii. These measures measures should not not be considered considered when when determining determining whether whether a major major life activity is substantially impaired Except for ordinary glasses or contact lenses that fully correct the impairment – they will be considered in this evaluation ix. Purpose Purpose is to eliminat eliminatee discriminat discrimination ion that may may arise arise based on appearance appearance created by a corrective measure b. “Regarded “Regarded as” language language now include includess perception perception (not just just actual actual ability ability anymore) anymore) x. Congress Congress returns returns the statute statute to a discri discriminati mination on meaning meaning c. Expands Expands definition definition of “major “major life life activities activities”” to include include broad list list of major major bodily bodily functions – would cover disabilities that are episodic or in remission •

xi. Taken from from EEOC EEOC regulati regulations ons – but not limited limited to to list list d. “Substantial “Substantial”” doesn’t doesn’t mean severely severely restricts restricts 28

 

xii. Puts burden burden on employer employer to make make reasonable reasonable accommodat accommodations ions for indivi individuals duals who can demonstrate impairment that substantially limits a major life activity As long as the accommodations don’t place an undue burden on the employer •

What is a reasonable accommodation?

a. The accommodation process is an interactive process between be tween the employee/employer Burden is on employee to show it’s a reasonable accommodation Burden is on employer to show it’s an undue hardship b. Is it reasonable to require an employee to use up sick time to deal with the manifestation of their disability b/c working from home was too burdensome for employer? Rarely a reasonable accommodation to allow a worker to work from home without supervision xiii. Example – employee wanted employer to create an accessible sink in the kitchen. Employer had an accessible sink in the the bathroom so didn’t want to to pay $150 to get sink in kitchen as well • •











Court said this reasonable, employer didn’t want to get sink in kitchen as well Courts look to following factors when evaluating an accommodation a. Nature and cost of accommodation b. Efficacy of accommodation; will it really benefit the employee? c. Cost can’t be disproportionate to the benefit d. Overall financial resources of the company Example – employee comes to work late everyday and is let go as a result. Employee claims he has agoraphobia and has to wait until later to take subway to work  a. Employer must know about the disability and impairments b. If an employee has agoraphobia and employer doesn’t know, can’t expect an accommodation c. Employee mentions to employer that he gets anxious on subway – probably still not enough b/c no proof that it’s a medical or psychiatric issue Employer has a duty to engage in some conversation but also can’t insinuate disability where one does not exist a. One way for employer to avoid liability under ADA is to clearly define the essential functions of the job b. For instance, job requires lifting of 50lbs, if employee hurts back and can’t lift that much then he can’t perform the essential functions of the job i. Proper accommodation could be job restructuring – switch certain duties 29

 

ii. If this isn’t possible, then there isn’t a reasonable accommodation and employee can’t perform essential functions of job with or without a reasonable accommodation. Won’t have claim under ADA xiv. Mental impairment impairmentss – if employe employeee has ADD ADD and needs needs a private private office office to to do their job, is this a reasonable accommodation? Can be considered favoritism Medical Inquiries

a. Restrictions on medical exams and inquiries in 3 situations i. (1) Pre-offer/application stage, ADA § 102(d)(2)(A) May not conduct a medical exam or make inquiries regarding whether the individual has a disability or as to the nature or severity of such disability May discuss medical issues with job applicants in 3 narrow situations: a. ADA § 102(d)(2)(B) – pre-employment inquiries into the ability of an applicant to perform job-related functions (must be made to all applicants) b. May ask applicant how he/she may perform the essential •



functions of the job for which they are applying

c. May ask an applicant with an obvious or known disability what

accommodation is required (e.g. wheelchair) but can’t ask a sk how long they have used a wheelchair or how the disability occurred). i. If they need an accommodation, can ask for a medical evaluation ii. (2) After individual has been offered the job – entering employees ADA § 102(d)(2)(B)(3) – employer can require medical exam after an offer of employment has been made to an applicant and prior to commencement of employment duties and may condition an offer on results of the exam as long the following conditions are met: •

a. All entering employees have to take the same medical exam,

regardless of whether they have a disability b. Employer keeps medical info on separate forms, in separate medical files, and treats if as a “confidential medical record” c. The employer uses the exam only to comply with the ADA Based on the medical exam, an offer cannot be withdrawn, unless: a. It’s related to the individual’s job (impairs ability to do the job) AND b. Necessary for the conduct of employer’s business i. High standard iii. (3) Post-offer stage – existing or current employees – ADA § 102(d)(4) Prohibits employer from requiring current employees to submit to a •



medical exam or make inquiries about whether an employee has a disability or as to the nature/severity of such disability, unless such

30

 

exam/inquiry is shown to be job-related and consistent with business necessity a. “You fall asleep at your desk ev every ery day and it’s affecting your work – it’s an essential job function that you be awake on the  job – do you have a medical condition?” b. Where there is a need to determine if the employee is still able to perform the essential functions of the job b. Drug testing i. ADA doesn’t consider illegal drug users as “qualified individuals with a disability” ii. Can’t discrimination based on prior drug use as long as employee is no longer engaging in that activity (history of drug use but not recent/current) If tested for drugs at work, tested positive and immediately enroll en roll in rehab – can be disciplined or terminated on this basis – this isn’t a history of drug use, it was recent iii. Alcoholism is treated differently from drug use b/c not a “drug” “d rug” within meaning of statute; considered a disability •

The ADA and FMLA

a. If an employee is requesting FMLA leave but the employer doesn’t have enough information to determine if the employee is qualified, employer may make inquiries i. Medical certification from doctor b. After FMLA leave an employer can request a fitness for duty certification but only for the particular health condition that caused the employee’s need for FMLA leave

Genetic Information Nondiscrimination Act of 2008 (GINA)

a. 2 types of genetic testing that can be done in the workplace: i. Screening for specific inherited diseased AND ii. Screening for susceptibility to diseases that might be aggravated b by y conditions of substances in the workplace b. Health Insurance Portability and Accountability Act of 1996 (HIPA) – first federal law speaking to use of genetic gene tic information iii. Can’t use genetic info as basis to limit and deny health coverage c. Prohibits discrimination against individuals based on their genetic information and makes it unlawful to retaliate against individual who has opposed op posed any act or practice made unlawful by GINA d. Also prohibits covered entities from purchasing, requesting, or requiring genetic info of an individual *In order to avoid discrimination liability, HR Departments typically tell supervisors not to discuss health issues of the individual or their family

CASES: 31

 

•  • • •

 Huber v. Wal-Mart Stores Sutton v. United Airlines Toyota v. Williams Vande Zande v. Wisconsin

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III. ADJUDICATING AND REMEDYING DISCRIMINATION 2forcemet c!eme.

 

 §1981 of Civil Civil Rights Act of 1866  1866   passed passed to to p!e,ent p!e,ent !ace !ace dis disc!i c!i"in "inati ation on in e"pl e"plo" o"ent ent as it it &as in in 1KK 5 a co"'ination o! national o!i%in and !eli%ion 5 e*%* Ge&ish !ace candina,ian !ace  Ad!dication"Remedie  Ad!dicati on"Remediess

    

+o ad"ini ad"inist!a st!ati,e ti,e enfo!ce"ent enfo!ce"ent sche"e of e"plo e"plo"ent "ent disc!i"ina disc!i"ination tion clai"s clai"s  'ased on §1R1 o! the onstitution so don$t need to ehaust ad"inist!ati,e !e"edies O: is C ea!s ea!s as oppose opposed d to the the li"ite li"ited d O: fo! Titl Titlee VII +o cap on 'ac pa  +o financial cap on co"pensato! o! puniti,e da"a%es Often pa!ties &ill /oin a §1R1 clai" &ith a Title VII clai" in o!de! to ci!cu",ent the O: and !e"edies li"itationsS

Procedre for 'itle ""* AA* ad A2A. 1. #!ri #!risd sdic icti tion on  2"ploe! needs to e"ploe! 1M o! "o!e e"ploees to 'e su'/ect to fede!al antidisc!i"ination la&s (6D26 !eui!es ?0 o! "o!e)   +> onl !eui!es C o! "o!e e"ploees to 'e su'/ect to st state ate anti-disc!i"ination la&s  @ust ehaust ad"inist!ati,e !e"edies 'efo!e tain% clai" to fede!al cou!ts (also fo! I+6) $. %imel& Filing Proced!res  ha!%e "ust 'e filed &ith 22O o! &ith state o! local a%enc that has fo!"al !elationship &ith the 22O  If the!e is a state8local a%enc then "ust file &ith 10 das of e"plo"ent disc!i"ination  If no state8local a%enc then ha,e ha, e 300 das to file &ith 22O  If cha!%e cha!%e is is filed filed &ith &ith state8lo state8local cal a%enc a%enc can can file file &it &ith h 22O &ithin &ithin 300 das das 'ut 22O &ill defe! until decision is !ecei,ed f!o" state8local a%enc  If cha!%e cha!%e is is fi!st fi!st filed filed &ith &ith 22O 22O the the &ill &ill &ait &ait fo! K0 das das to see see if state8loca state8locall cha!%e &ill 'e filed

32

 

 Ad!dication on 5 22O doesn$t hold an ad/udicati,e hea!in%s (ecept fo! fede!al 3*  Ad!dicati e"ploees)  In,esti%ates and t!ies to !econcile inte!ests  an$t co"pel e"ploe! to do anthin% thou%h '. Ca!se (etermination  If 22O 22O finds finds p!o'a'le p!o'a'le cause cause &ill contact contact e"ploe! e"ploe! fo! conciliatio conciliation8set n8settle"e tle"ent nt U If e"plo e"ploe! e! !efus !efuses es concil conciliat iation ion o! the the cau cause se isn$t isn$t sett settled led despi despite te atte"pts then 22O issues a i%ht to ue. :ette! to o"plainant  If 22O doesn$t find cause then co"plainant is %i,en i%ht to ue. :ette!  Fo! 6D6 and Titl Titlee VII VII afte! afte! 10 das can can as fo! a i%ht to ue. ue. :ette! :ette! e,en if a decision hasn$t 'een "ade ' 22O (onl K0 das fo! 6D26) ). #! #!di dici cial al *nfor *nforce ceme ment nt  @ust @ust '!in% '!in% clai" clai" in fede! fede!al al cou!t cou!t &ith &ith R0 das das of !ecei, !ecei,in% in% tthe he i%ht i%ht to to ue. :ette! 5 !e%a!dless of &hethe! it$s ' !euest o! afte! a cause dete!"ination  Fo! 6D26 6D26 onl onl ha,e ha,e to &ait K0 das das afte! afte! filin% filin% &ith 22O 'efo!e 'efo!e '!in%in% '!in%in% a case to fede!al cou!t  Dist!i Dist!ict ct ou! ou!tt &ill &ill !e,ie& !e,ie& 22O 22O decis decision ionss de no,o no,o  Once case case is is '!ou%ht '!ou%ht to fede!al fede!al cou!t cou!t 7M of 2D 2D cases cases a!e a!e !esol,ed !esol,ed at su""a! su""a!  /ud%"ent •



If case %ets past su""a! /ud%"ent lielihood of settle"ent %oes up eponentiall T!ial is ,e! unliel

amage Total a"ount of da"a%es 5 puniti,e and co"pensato! 5 is 'ased on nu"'e! of • e"ploees the e"ploe! has 0000 clai"s '!ou%ht to 22O last ea! onl ?71 actions '!ou%ht ' 22O • JJ JJ0000 'imig • When do the 300 das 'e%in to !un= The fi!st act o! the final act= 24al Pay Act (2PA) 5 e"ploees &ho do the sa"e ind of &o! a!e entitled to 'e paid at the sa"e !ate (!e%a!dless of %ende!) • 2ntitled to liuidated da"a%es no co"pensato! o! puniti,e da"a%es  +o ehaustion !eui!e"ent • 6l"ost an clai" unde! the 2ual 4a 6ct &ill also 'e actiona'le unde! Title VII •

JGanua! ?00R 4!es* O'a"a si%ned :ill :ed'ette! Fai! 4a 6ct into la& o,e!!ul o,e!!ulin% in% the :ed'ette! decision and "ain% ins'u!%$s dissent the la& (6"ended Title Title VII) 1* 6n unla&ful unla&ful e"plo"ent e"plo"ent p!actice p!actice occu!s occu!s &ith &ith !espect !espect to the the disc!i"inat disc!i"ination ion in co"pensation in ,iolation of this title &hen<  6 disc!i"inato! disc!i"inato! co"pensation decision o! othe! p!actice is adopted  6n indi,idu indi,idual al 'eco"es 'eco"es su'/ect su'/ect to a disc!i"i disc!i"inato! nato! co"pensation co"pensation decision decision o! othe!   p!actice

33

 



When an an indi,idua indi,iduall is affected affected ' applicat application ion of a disc!i" disc!i"inato! inato!  co"pensat co"pensation ion decision o! othe! p!actice includin% each ti"e &a%es 'enefits o! othe! co"pensation is paid !esultin% in &hole o! in pa!t f!o" such a decision o! othe!  p!actice U 2,e! 2,e! disc!i disc!i"in "inato ato! ! cla clai" i" (i*e* (i*e* e,e! e,e! pachec pachec) ) !esta !esta!ts !ts the the cloc cloc &ith !e%a!d to the O: ?* Will Will still still ha,e to p!o,e intent intent on the pa!t of of the e"ploe! e"ploe! ho&e,e! ho&e,e! "an ea!s ea!s a%o that the disc!i"inato! intent occu!!ed 3* an %o 'ac 'ac ? ea!s ea!s f!o" f!o" &hen &hen ou file a cha!%e cha!%e fo! fo! 'ac-pa 'ac-pa

/2M2"2< +ac,-pa& front-pa& and reinstatement"instatement  •

Basic e"edial 4!inciples  Dete! Dete!!en !ence ce and and o"p o"pens ensat atio ion n 4!inc 4!incip iple less 1* Dete!!ence Dete!!ence p!incipl p!inciplee 5 effectuate effectuated d ' the !i%htful !i%htful place place theo! of !elief !elief  5 a&a!d the te!"s conditions o! p!i,ile%es of e"plo"ent that the &ould ha,e had 'ut-fo! the unla&ful e"plo"ent disc!i"ination ?* o"pensato! o"pensato! p!inciple p!inciple 5 effect effectuated uated ' the "ae-&hol "ae-&holee theo! of !elief 5 "oneta! co"pensation to !e"ed econo"ic ha!" suffe!ed in  past o! "a suffe! in futu!e as conseuence of unla&ful e"plo"ent  

disc!i"ination o"pen o"pensat sato! o! and and punit puniti,e i,e da"a da"a%es %es a,ai a,aila' la'le le unde! unde! §1R1 §1R1 cases cases 1RR1 6ct no& "aes "aes the" the" a,aila'le a,aila'le unde! Title Title VII VII and and 6 6D6 D6 'ut onl onl fo! dispa!ate t!eat"ent cases not in,ol,ed "ied-"oti,e clai"s 1* Fo! A(A entitled to 'ac-pa f!o" the date te!"inated until the  /ud%"ent ?* Fo! A(*A clai"s unde! fede!al la& !e"ed is dou'led 'ac-pa# ecept if ou ha,e a supple"ental state la& clai" (in +> fo! ea"ple) then ou ha,e the oppo!tunit fo! co"pensato! da"a%es

/2"'A'2M2'%"'A'2M2' • O'/ecti,es< 1* ec!eates the e"plo"ent !elationship as it &ould ha,e eisted ' fo! unla&ful e"plo"ent disc!i"ination ?* 4!e,ents futu!e econo"ic loss to 4laintiff  3* 6llo&s an e"ploe! to de"onst!ate %ood faith co"pliance co "pliance &ith la& to othe! e"ploees C* 4!e,ents e"ploe! fo!" t!in% to %et !id of e"ploees at an cost &ho asse!t thei! !i%hts unde! la&s p!ohi'itin% disc!i"ination in e"plo"ent einstate"ent inapp!op!iate if< • 1* Innocent e"ploee e"ploee &ould &ould 'e displac displaced ed ' !einst !einstatin% atin% 4l# o!  ?* ;ostilit ;ostilit o! ani"osit8 ani"osit8hosti hostilit lit 'et&een 'et&een 4l and and e"ploe! e"ploe! &ould "ae "ae a"ica'le a"ica'le and p!oducti,e &o!in% !elationship i"possi'le# o!  3* 4osition 4osition has 'een 'een eli"inat eli"inated ed due to IF IF "e!%e! "e!%e! etc* Instead can %et f!ont-pa &hen !einstate"ent is inapp!op!iate • •

'aterho!se case if In "ied-"oti,e cases unde! a"end"ents that ca"e afte!  Price 'aterho!se e"ploe! can p!o,e that it &ould$,e "ade sa"e decision ecludin% disc!i"inato!

34

 

"oti,e 4laintiff doesn$t %et p!esu"pti,e !einstate"ent o! in/uncti,e !elief decla!ato! !elief and atto!ne$s atto!ne $s fees fees



 %ets

F/O'-PA6 • @oneta! a&a!d to co"pensate fo! futu!e lost &a%es d du!in% u!in% the pe!iod 'et&een /ud%"ent and !einstate"ent o! in lieu of !einstate"ent (disc!etiona!) •





 +o fede!al statute specifin% f!ont-pa as !e"ed 'ut /udicial opinion a&a!ds it unde! Title VII 6D26 6D26 6D6 eha'ilitation 6ct and §1R1 §1R 1 a"e ele"ents in dete!"inin% f!ont-pa as those used in dete!"inin% 'ac-pa  7th i!cuit calculates it as the diffe!ence (afte! p!ope! discountin% to p!esent ,alue) 'et&een &hat 4l &ould ha,e ea!ned in the futu!e had he 'een !einstated at the ti"e of t!ial and &hat he &ould ha,e ea!ned in the futu!e in his net  'est e"plo"ent When does it end=  @a'e &hen 4l !eaches sa"e le,el of co"pensation o! finds eui,alent /o'  In a%e disc!i"ination case 5 &he!e plaintiff &ill !eti!e soon &ill %et paid up until a !easona'le !eti!e"ent a%e

BA78-PA6 • annot etend "o!e than ? ea!s p!io! to filin% of a cha!%e* 4e!tains p!i"a!il to  p!o"otion decisions* Fo! te!"ination 'ac-pa 'e%ins at date of te!"ination until /ud%"ent on lia'ilit • Bac-pa includes< • 1* ala! !aises and cost of li,in% !aises ,alue of cont!i'utions to !eti!e"ent  plan othe! 'enefits e"ploe! %i,es ?* @edical epenses "a 'e included o! !ei"'u!se"ent of "edical epenses that &ould$,e 'een co,e!ed if ou &e!e insu!ed • >o >ou u %et it if ou &in 5 p!esu"pti,e entitle"ent (not dete!"ined ' /u!)  /i0ed-motive  /i0ed-moti ve case 1* If e"ploe! p!o,es it &ould$,e "ade sa"e d decision ecision  4l %ets li"ited !elief (atto!ne$s fees fees and costs decla!ato! /ud%"ent and in/uncti,e !elief) ?* If e"ploe! e"ploe! una'le to p!o,e p!o,e that it &ould$, &ould$,ee "ade sa"e decisi decision on  4l %ets  'ac-pa !einstate"ent !einstate"ent co"pensato! da"a%es etc*   Limitig $ac-#ay lia$ility 1*  /itigation doctrine 5 e"ploee has a dut to "iti%ate the da"a%es i* @ust loo fo! a /o' ii* Bu!den on e"ploe! to p!o,e failu!e to "iti%ate ?* 2"ploe! "a offe! plaintiff thei! /o' 'ac 5 'ac-pa stops &hen e"ploee  'e%ins &o!in% i* efusal "ust 'e fo! %ood cause 3* 2"ploe! "a t! to find di!t. on the e"ploee in o!de! to sho& that discha!%e8e"plo"ent action &as le%it i* Would Would p!eclude 'ac-pa 



C* If e"ploe! that itpe!iod no lon%e! has the /o' 5 it$s 'een eli"inated 5 that &ould cut offcan thep!o,e 'ac-pa

35

 





 Pre-!dgment interest   Pre-!dgment interest <  i%nificant ele"ent of da"a%es# lon%e! liti%ation lasts the "o!e inte!est accu"ulates# %ene!all conside!ed app!op!iate ' cou!ts  Post-!dg  Post-!dgment ment interest  interest <  Esuall doesn$t a"ount to "ust# acc!ues 'et&een ent! of /ud%"ent /ud% "ent until &hen it$s actuall paid

:Bac-#ay* frot-#ay* reitatemet ; e4ita$le remedie* determied $y <dge

7om#eatory ad Pitive amage Compensator& damages a!e defined unde! 1RR1 1RR 1 6ct to include futu!e pecunia! losses • e"otional pain suffe!in% incon,enience "ental an%uish loss of en/o"ent of life and othe! non-pecunia! losses. •  P!nitive damages damages "a'e !eco,e!ed if 4l p!o,es that D en%a%ed in an unla&ful e"plo"ent p!actice &ith "alice o! &ith !ecless indiffe!ence to the fede!all p!otected !i%hts. 1* eui!es eui!es conduct conduct that that "o!e "o!e than than intention intentional al disc!i" disc!i"inati ination on ?* Facto!s Facto!s conside!ed< conside!ed< natu!e and se,e!it se,e!it of of the di disc!i" sc!i"inato inato! ! conduct conduct du!ation and f!euenc of conduct and financial status of e"ploe! • o"'ined co"pensato! and puniti,e da"a%es a!e capped# hasn$t 'een chan%ed since 1RR1 1* 2"ploe! has "o!e than 1C 'ut less than 101 e"ploees 5 cap is XM0  ?* 2"ploe! has "o!e than 100 'ut fe&e! than ?01 e"ploees 5 cap is X100  3* 2"ploe! has "o!e than ?00 'ut fe&e! than M01 e"ploees 5 cap is X?00  C* 2"ploe! has "o!e than M00 e"ploees 5 cap is X300  (*%*R/34*5  co"pensato!  #R2 (*%*R/34*5   co"pensato! and puniti,e da"a%es •  Gu! isn$t info!"ed of caps /ud%e !educes an a&a!d in confo!"it &ith the caps • o"pensato!84uniti,e Dete!"inations don$t include 'ac-pa and f!ont-pa  The /ud%e dete!"ines these* Li4idated amage • Onl unde! 6D6 et it !e%a!dless of p!oof of phsical8e"otional dist!ess if e"ploe! action is &illful • @uch "o!e !outinel a&a!ded in 6D6 cases than puniti,e da"a%es a!e a&a!ded • 'aatio Bac-pa al&as conside!ed taa'le inco"e • ule is that da"a%e fo! e"otional dist!ess a!e taa'le &ith sli%ht eceptions so"eti"es • fo! e"otional dist!ess that is the !esult of phsical in/u!ies* Then puniti,e da"a%es a!e taa'le*  o"eti o"eti"es "es 4l 4l can ne%ot ne%otiat iatee a paout paout so all all of a&a! a&a!d d isn$t isn$t paid paid out out in 1 ea!  ea!  Attorey= Fee

36

 



• •

 +eed a /udicial dec!ee to !ecei,e an a&a!d of atto!ne$s fees i* In a p!i,ate settle"ent ou a!en$t entitled to atto!ne$s fees In an 6D6 clai" if 4 &ins D pas 4$s atto!ne$s atto!ne$s fees e'utta'le p!esu"ption that D isn$t entitled to atto!ne$s fees i* an !e'ut if 4$s clai" is found to 'e f!i,olous  then 4 &ould pa D$s atto!ne$s fees* 







alculatin% atto!ne$s fees i* Includes< atto!ne$s &o! hou!s deposition costs and cou!t co u!t fees ii* easona'le hou!s  !easona'le !ates iii* @ust eep !eco!ds specifin% &hat ou$!e &o!in% on 'ecause onl entitled to atto!ne$s fees fo! clai"s on &hich ou p!e,ailed i,* 6& 6&a!ded a!ded afte! a cou!t decision so taes ta es so"e ti"e to %et this "one If &o!in% &ithout a fee (non-p!ofit o! p!o 'ono) 5 still entitled to fees '8c pa!t of !e"edial sche"e of Title VII 5 p!e,ailin% "a!et !ate fo! atto!ne i* 6tto!ne$s fees a!e a fo!" of punish"ent to hu!t the e"ploe! defendantt doesn$t allocate atto!ne$s fees f!o" plaintiff$s a&a!d :u"p su" a&a!ds< defendan  plaintiff and thei! atto!ne fi%u!e it out i* 6s a !esult all e"plo"ent disc!i"ination cases a!e on contin%ent fee 'asis 5 183 of a&a!d %oes to atto!ne

Baic /emedial Prici#le 1*  Deterrence (F!ans)< the !i%htful place theo! !elief* 6 cou!t cou!t is to a&a!d successful 4s the te!"s conditions o! p!i,ile%es of e"plo"ent. the &ould ha,e ha ,e had &ith D 'ut fo! unla&ful e"plo"ent disc!i"ination* ?* Compensation (@ood)< "ae-&hole theo! of !elief* uccessful 4s a!e entitled to "oneta! co"pensation to !e"ed the econo"ic ha!" the ha,e suffe!ed in the p past ast o! "a suffe! in the futu!e as a conseuence of the D$s unla&ful e"plo"ent disc!i"ination* Offer of em#loymet after re<ectig t!e a##licat U 6'sent special special ci!cu"st ci!cu"stances ances an offe! offe! of e"plo"ent e"plo"ent to to a !e/ected !e/ected applicant applicant tolls tolls the the

acc!ual of 'ac pa pa  if 2! "aes an unconditional offe! of the /o' denied e,en if the offe! does not include all the !elief that the plaintiff is entitled to !ecei,e (p* 71)* 7ollateral orce octrie U o"e co cou!ts u!ts hold that that 'enefits 'enefits !ecei,ed !ecei,ed f!o" f!o" a sou!ce sou!ce collate!al collate!al to to the disc! disc!i"inat i"inato! o! conduct (social secu!it une"plo"ent co"pensation &elfa!e 'enefits and disa'ilit inco"e) "a not 'e used to !educe 'ac pa pa  a&a!ds* o"e cou!ts hold that dist!ict cou!ts ha,e disc!etion to set off collate!al inco"e a%ainst a 'ac pa a&a!d* Pre-<dgmet "teret U T!i T!ial al cou!ts cou!ts ha,e ha,e disc!eti disc!etion on to a&a!d p!e/ud p!e/ud%"ent %"ent inte!est inte!est on 'ac pa (!eco%niAed (!eco%niAed ' the * t*) Pot-<dgmet "teret U @a @and ndat ato! o! unde unde!! ffede ede!a !all la& la& (p* (p* 7?) 7?)

37

 

'!e 7a# o 7om#eatory ad Pitive amage U 2"p 2"plo loe!$ e!$ss &ith &ith 1C-100 1C-100 e"plo e"ploee$ ee$s< s< XM0000 XM0000 U 101101-?0 ?00 0 e"pl e"plo oee ee$$s< X100 X1000 000 00 U ?01?01-M0 M00 0 e"pl e"plo oee ee$$s< X?00 X?000 000 00 U @o @o!e !e th than an M00 e"pl e"ploe oee$ e$ss< X X30 3000 0000 00 • •





6ll "onefees a&a!ds a!e taa'le (' (ecept the atto!ne$s fees) 6tto!ne a!e !eco,e!a'le the p!e,ailin% pa!t and it "eans if 2"ploee &ins* If 2"ploee loses 2"ploe! &ould ha,e a ha!d ti"e !eco,e!in% the atto!ne$s fees f!o" 2"ploee 5 &ill ha,e to sho& that 2"ploee$s clai" &as f!i,olous %!oundless o! "ade in 'ad faith &hich is usuall not the case if the clai" %ot to t!ial)* The fees a!e calculated as (!easona'le hou!s)  (!easona'le !ates)* 2"ploee can %et the atto!ne$s fees e,en if she is !ep!esented ' a pu'lic inte!est fi!"* 2"ploees a!e also entitled to !ecoup epe!t ep e!t fees deposition costs and othe! !elated costs* :u"p su" a&a!d 5 one &a 2! "a %o a'out settlin% the &hole case (difficult fo! atto!nes as need to fi%u!e out ho& "uch of it &ould 'e p paid aid to the" to dete!"ine if the fi%u!e is !easona'le)*

7LA "7>"O%?6PO. • >ou >o u a!e ha!assed at &o! a!en$t p!o"oted and !esi%n 'ecause the conditions a!e so intole!a'le*  >o >ou u a!en$t a!en$t entitl entitled ed to 'ac 'ac pa unless this is p!o,en p!o,en to to 'e const!uct const!ucti,e i,e discha! discha!%e %e  If it it is not const! const!ucti, ucti,ee discha!% discha!%e e ou$!e ou$!e onl entit entitled led to to co"pensat co"pensato! o! and and  puniti,e da"a%es fo! ha!ass"ent clai"  Fai Failu lu!e !e to to p!o" p!o"ot otee clai clai" " "ust "ust 'e 'e &ith &ithin in O: O: '&o @mae &!ole remedie 1*  Bac, pa& (can onl %o ? ea!s 'ac)  Base sala!



Ben Benefi efits ts 5 health hea lth insu insu!an !ance ce (&hat (&h oufo! ou paid fo! p!i,at fo! p!i ,ate e insu!a insu!ance nce o! if if outo didn$t ha,e insu!ance &hat ouatpaid health ca!e costs) cont!i'ution !eti!e"ent8pension  os ostt of of li,i li,in% n% !ai !aises ses "e!i "e!itt !ais !aises es 'onu 'onuses ses  4!e 4!e-/u -/ud%" d%"ent ent inte! inte!est est (p!e (p!esen sentt ,alue ,alue of "one "one ou &ould &ould$,e $,e %ott %otten en ? ea!s ea!s a%o) $. 3n 3n! !nc ncti tive ve re reli lief ef  e ein inst stat ate" e"en entt o! f! f!on ontt pa pa  U Wi Will ll !ei !einst nstate ate"en "entt 'u" 'u"p. p. an an innoc innocent ent e"p e"plo loee= ee=  @i @itti% i%at atiion of da da" "a% a%es es U Di Did d e"p e"plo loee ee t! t!  to to fin find d oth othe! e! &o &o!  !  U 6t 6tte te"p "ptt to to hi hi!e !e pe pe!s !son on 'a 'ac  c  U Ene" Ene"plo plo"en "entt insu!a insu!ance nce 'enef 'enefit itss ("a ("a o! "a not cut cut a%ain a%ainst st a&a!d a&a!d)) 

o"pens o"pe nsat ato! o!  an and d pun punit iti, i,ee da da"a "a%e %ess U In In/u /u! ! to !ep eput utat atiion

38

 

U U

2,iden 2,id ence ce of "a "ali lice ce ' e" e"pl plo oe!  e!  Onl if the the!e !e is int intenti entional onal dis disc!i c!i"i "inati nation on

39

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