EMPLOYMENT DISCRIMINATION OUTLINE
I. THE BASIC FRAMEWORK: E.S.P. -- C.P.R.
E- Employment Context
C- Claim (what type?)
P- Particular Issues
II. EMPLOYMENT CONTEXT
a. Who counts as an employee?
i. Under the common law, a ―master/servant‖ relationship controls.
Consider the following (non-exclusive) factors:
1. whether the organization can hire/fire the individual
2. whether (and to what extent) the organization supervises the
3. whether the individual reports to someone higher in the
4. whether (and to what extent) the individual can influence the
5. whether the individual shares in the organization’s profits & losses
6. whether the parties intend that the individual is an employee
ii. If the individual isn’t an employee, she is an independent contractor
b. Who counts as an employer?
i. Under Title VII: an organization with more than 15 employees
Under the ADEA: an organization with more than 20 employees
Under the ADA: an organization with more than 15 employees
ii. GENERALLY: labor unions and employment agencies count as employers
under all three of the relevant statutes.
iii. EXEMPT ENTITIES:
1. Under Title VII: Indian tribes, private membership clubs, and,
under limited circumstances, religious organizations
2. Under the ADEA: state governments retain sovereign immunity.
3. Under the ADA: state governments retain sovereign immunity.
Title VII (sex/religion/race/color/national origin), ADEA (age), ADA (disability)
a. The statutes prohibit discrimination in hiring, firing, promotion, transfer, etc.
b. Title VII
i. The plaintiff must allege discrimination on the basis of sex, religion, race,
color, or national origin.
i. The plaintiff must allege age-based discrimination. For the plaintiff to
succeed, the defendant-employer must discriminate against a plaintiff who
is at least 40 years old in favor of a younger employee or candidate.
1. The younger employee may be any age, just less than ADEA π.
i. Plaintiff is a qualified individual discriminated against b/c of disability.
ii. There are three ways to be in the protected class (to become a plaintiff):
1. by having an actual & present disability
2. by having a record of disability
3. by being perceived by others as having a disability
iii. A disability is:
1. a mental or physical impairment
2. that substantially limits
3. major life activities
iv. A qualified individual is:
1. an individual with a disability
2. who, with or without reasonable accommodations,
3. can perform the essential functions of the job.
IV. PROCEDURAL HURDLES
a. File a Charge with the Pennsylvania Human Rights Commission (PHRC)
i. Within 180 days from last incident
ii. PHRC has exclusive jurisdiction for 60 days
b. File a Charge with the Equal Employment Opportunity Commission (EEOC)
i. Within 300 days from last incident or within 30 days of receiving notice
that the PHRC has terminated its proceedings—whichever comes first.
ii. The charging party may demand either a ―Right to Sue‖ or ―Termination‖
letter within 180 days from filing.
iii. The EEOC may continue with its own suit
i. Must file within 90 days of receiving the EEOC letter.
ii. NOTE: Plaintiff may proceed with private litigation despite receiving a
termination letter from the EEOC. ADEA π may proceed without letter.
a. There are five (5) kinds of claims:
i. Individual Disparate Treatment (2 kinds: single motive & mixed motive)
1. Single Motive (the McDonnell Douglas framework)
a. Plaintiff must prove her prima facie case by showing that:
i. π is a member of the protected class;
ii. π is minimally qualified for the position;
iii. (if nec: π actually applied for an open position)
iv. (if based on religion: Δ knew of π’s religion)
v. Δ engaged in adverse employment action; and
vi. the position remained open, was filled by someone
outside the protected class, or filled in
circumstances giving rise to an inference of
b. Burden shifts to employer to show a LNDR
i. Can be anything – need not relate to the job.
c. Burden shifts back to employee to show that LNDR is a
pretext for actual discrimination.
i. the LNDR was not the real reason for the
underlying employment action,
ii. the real reason was discrimination, and
iii. it was the determinative factor in the decision.
2. Mixed Motive (varies by statute)
a. Title VII
i. π demonstrates that an impermissible reason was a
motivating factor in the decision. Δ then has the
opportunity to prove by a preponderance of the
evidence that it would have made the same decision
even in the absence of the impermissible reason.
ii. A successful defense limits remedies to declaratory
relief, injunctive relief, attorney’s fees, and costs.
The court can’t award damages, reinstatement, etc.
b. ADA (Price Waterhouse framework)
i. π must have direct evidence of discrimination.
ii. π must show, by direct evidence, that disability-
discrimination was a substantial factor. Then the Δ
may avoid liability by showing that it would have
reached the same decision without discrimination.
i. Mixed motive framework is unavailable.
ii. Systematic Disparate Treatment (2 kinds: formal policies of discrimination
and informal patterns and/or practices of discrimination)
1. Formal Policies of Discrimination
a. π proves that the Δ has a discriminatory policy.
b. Δ may offer one of three (3) statutory defenses:
i. bona-fide occupational quality (BFOQ)
1. It’s not unlawful for an employer to take
otherwise-prohibited employment actions if
age, sex, religion, or national origin is
reasonably necessary to the normal
operation of the business.
a. Exists if: there is reasonable cause to
believe that all or substantially all of
the people in the class are unable to
safely and efficiently perform the
duties of the job.
b. Exists if: some employees in the
class possess a trait precluding safe
and efficient job performance, and
it’s practically impossible for the
employer to deal with the class on an
2. Race and Color cannot ever serve as a basis
ii. bona-fide seniority system
iii. Under ADEA only:
a bona-fide employee benefit plan
2. Informal Patterns/Practices of Discrimination
a. π must prove that the employer’s standard operating
procedures discriminate against a protected class, through:
1. comparison groups must be correct in terms
of geography and skill
ii. anecdotal evidence
iii. historical evidence
b. Δ may challenge:
i. the factual basis of π’s prima facie case
ii. the raised inference of discrimination, or
iii. assert a statutory defense (BFOQ)
iii. Systematic Disparate Impact
An employer’s facially neutral policies, regardless of intent, adversely
affect a protected class and cannot be justified
1. π must prove a prima facie case:
a. π belongs to a protected class
b. there’s either a particular employment practice at issue, or
Δ doesn’t keep records so π can’t tell which practice is at
issue—in that case, π can rely on ―the bottom line‖
c. there’s a causal link between the practice and resulting
d. the challenged practice must produce a disproportionate
i. No set test – EEOC uses an 80% rule
2. Δ has the opportunity to rebut:
a. Challenge elements of the π’s prima facie case
b. Argue ―business necessity & job relatedness‖ – argue that
the practice is job-related and actually relates to job quality
c. Statutory protection for certain employment practices:
i. Professionally Developed Tests
ii. Bona Fide Seniority Systems
iii. Bona Fide Merit and Piecework Systems
quantity / quality based compensation is okay
3. π may show that there is an alternative practice that meets the
employer’s goals without discriminating
a. the alternative must be reasonable – usually relates to cost
iv. Harassment (two kinds: quid pro quo and hostile work environment)
1. Quid Pro Quo
a. When a manager demands sexual conduct in return for
tangible employment benefits.
i. Only applies to sex discrimination cases (Title VII)
b. No formal defenses.
c. Boils down to a ―he said‖ / ―she said‖ case.
2. Hostile Work Environment
a. π'’s prima facie case:
i. π belonged to a protected class
ii. conduct resulted from π’s membership in a
iii. IN SEX CASES: the behavior was unwelcome, and
iv. The behavior was severe or pervasive. Consider:
3. Whether it was physically threatening or
4. Whether it objectively interfered with work
b. If HWE created by supervisor:
i. Employer can avoid vicarious liability if it used
reasonable care to prevent and promptly correct
harassment, and the employee unreasonably failed
to use the employer’s established reporting
ii. Note the second prong: the employee’s failure to
report won’t be fatal if it was reasonable in the
circumstances. For instance, if the employee would
have had to report to the harasser, it might be
reasonable for her to fail to do it.
c. If HWE created by co-workers:
i. Employer can avoid vicarious liability if it knew or
should have known about the harassment, and the
employer failed to take prompt remedial action.
Employers may not retaliate against employees for exercising their rights
under the anti-discrimination statutes (Title VII, ADA, ADEA).
1. π's prima facie case:
a. π was engaged in statutorily protected speech
i. Two kinds: opposition and participation
ii. Opposition: (1) π’s speech occurred outside the
formal filing process, and (2) π must demonstrate a
reasonable, good faith belief that the objectionable
conduct is unlawful. Discussion during informal
investigations is sufficient.
iii. Participation: complaints within the formal
complaint structure (PHRC, EEOC, or employer
b. Employer was aware of the conduct
c. Plaintiff suffered an adverse, material employment action
d. There was a causal connection
2. Burden shifts to Δ to articulate a LNDR for the adverse
a. LNDR: loyalty alone is insufficient (otherwise, all persons
engaged in opposition or participation could be fired!).
Unreasonable opposition may, however, be sufficient.
3. Burden shifts back to π to show that the LNDR is a pretext for
VI. PARTICULAR ISSUES UNDER TITLE VII
a. Under the PDA, discrimination on the basis of pregnancy, childbirth, or
pregnancy-related conditions counts as sex discrimination under Title VII.
i. However, employers may treat pregnant woman just as badly as they treat
everyone else (firing a pregnant woman for taking too many sick days is
ok if you’d fire someone else for taking the same number of sick days).
b. Sexual Orientation is not a protected class.
i. However, discrimination due to gender stereotypes falls under Title VII.
c. Religious Discrimination
i. Employers must accommodate the religious practices and observances of
their employees unless doing so would present undue hardship to the
ii. Employer need not accept π’s suggested accommodation. It merely needs
to offer an accommodation so that π can observe his religion.
iii. Only consider undue hardship if no accommodation was offered.
VII. PARTICULAR ISSUES UNDER THE ADEA
a. The language of the ADEA provides two unique statutory defenses:
―Good Cause‖ and ―Reasonable Factors Other Than Age.‖
b. Employers may not force retirement, except:
i. ―Bona fide executives‖ may be forced out when they hit age 65.
ii. Public safety officers may be forced to retire.
c. Employers may not discriminate on the basis of age when they write benefit
packages. However, a benefit plan may provide lower benefits for older workers
if the employer costs for both older and younger workers are the same.
VIII. PARTICULAR ISSUES UNDER THE ADA
a. In addition to the five previously enumerated claims, ADA plaintiffs may also
bring a claim for failure to offer reasonable accommodations.
b. The ADA does not protect addicts from current addictions (where drug abuse
remains an ongoing problem).
c. Employers may require a pre-employment medical examination if it is part of a
reasonable inquiry into applicants’ ability to do their jobs, all job entrants are
subject to the test, and the results are confidential.
i. Drug testing doesn’t qualify as a ―medical test.‖
a. Legal Remedies
i. Under Title VII only, the statute imposes caps on damages:
1. 15-100 employees: $ 50,000
2. 101-200 employees: $100,000
3. 201-500 employees: $200,000
4. 500+ employees: $300,000
ii. The ADA and ADEA do not impose caps on damages.
iii. Punitive damages are only available when the employer engaged in
intentional discrimination, and did so either with malice or reckless
iv. Only the ADEA allows for liquidated damages.
1. By statute, liquidated damages are allowed if the employer
willfully violated the ADEA (knew or showed reckless
indifference for its prohibited conduct).
b. Equitable Remedies
ii. Frontpay: an alternative to reinstatement – can’t get both
iii. Retroactive Seniority
iv. Class-wide Affirmative Action Relief
v. Backpay: compensates π for period between cognizable wrong and
judgment, death, or offer of reinstatement
1. Begins when π first lost wages due to discrimination.
2. 2 year limit
3. Ends on the date of:
b. Employee’s Death
c. When the employee rejects an offer of reinstatement
4. May be reduced by amounts actually earned or potentially could
have been earned with reasonable diligence.
X. Attorney’s Fees: all three statutes provide for the recovery of attorney’s fees by the