Employment Discrimination Outline - DOC

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Employment Discrimination Outline - DOC Powered By Docstoc

      E-   Employment Context
      S-   Statute
      P-   Procedure
      C-   Claim (what type?)
      P-   Particular Issues
      R-   Remedies

        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.
       c. ADEA
               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.
       d. ADA
               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.

       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
       c. Litigate
               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.
                           c. ADEA
                                    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
                                           individual basis.
                              2. Race and Color cannot ever serve as a basis
                                   for BFOQ!
                      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:
                       i. statistics
                              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
                     (disparate) impact
                          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
                          protected class
                     iii. IN SEX CASES: the behavior was unwelcome, and
                     iv. The behavior was severe or pervasive. Consider:
                              1. Severity
                              2. Frequency
                              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.
             v. Retaliation
                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
                       employment action:
                           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

      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
                 employer’s business.
             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.
        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.

        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
             i. Reinstatement
            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:
                            a. Judgment
                            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
      prevailing party.

Description: This is a bar review outline that I created. It's direct and to the point. (You can rely on this. As a point of reference, I was about 3 points from the highest essay score in PA. These served me well.)