Employment discrimination

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Employment discrimination
2010-07-09 15:21:45
Employment discrimination

Employment discrimination
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  1. Employee or independent contractor factors

    Hire or fire or set rules and regulations
  2. Organization supervises the work
  3. Reports to someone higher in the organization
  4. Party intentions
  5. Share in profits or losses
  6. Individual's ability to influence the organization
  7. Title VII protected classes




    National origin
  8. Title VII defendants
    Employees 15 or more

    Labor unions

    Employment agencies

    • Exceptions:
    • Religious organizations

    Private member clubs

    Indian reservations
  9. ADEA
    Discriminated against someone 40 or older and replace with younger person
  10. ADEA defendants
    Employers 20 or more

    Labor unions

    Employment agencies
  11. ADA
    Discriminate against qualified individual due to a disability

    Fail to provide a reasonable accommodation that does not cause an undue hardship

    15 employees
  12. ADA protected class
    Actual present disability

    Record of disability

    Regarded as having a physical or mental disability
  13. ADA disability = physical or mental impairment that substantially limits a major life
    Physical or mental impairment: a cosmetic disfigurement, anatomical loss or mental or psychological disorder. DOES NOT included physical characteristsics like weight, height, and eye color within a normal range

    Major life activity: seeing, hearing, speaking, breathing, lifting, bending, standing, communicating, caring for one's self, performing manual tasks, and working. Must consider WITHOUT corrective measures.

    Substantially limits: prevent or severly restrict the individual from performing the major life activity construed broadly.
  14. ADA qualified individual
    Individual with a disability

    Who with or without a reasonable accommodation

    Can perform the essential functions of the job
  15. ADA reasonable accommodation (different from religious accommodation)
    • Making existing facilities accessible to and usable by individuals with disabilities:
    • Job restructuring: part time or modified work

    Schedules reassignment to a vacant position

    Readers, interpreters, aids.

    • COST is considered and need to show an undue hardship: An accommodation requiring significant difficulty or expense. Size and
    • financial resources of employer taken into account.
  16. Defenses to ADA
    Legitimate nondiscriminatory reason

    Undue hardship: the accommodation requring significant difficulty or expense

    Direct threat to the health and safety of other individuals

    Job related and consistent with business necessety.
  17. Types of claims
    Individual disparate treatment

    Systemic disparate treatment

    Disparate impact


  18. Title VII Individual disparate treatment

    Single motive: McDonnell Douglas

    • Mixed motive: motivating factor
    • Limited remedies
  19. McDonnell Douglas test for all single motive disparate treatment
    Member of protected class

    Qualified for the position - minimal qualification

    Applied for the open position

    Adverse employment action

    Position remained open or filled by someone of another class

    Burden shift to articulate a legitimate non discriminatory reason

    Burden back to plaintiff to show that the reason was a pretext or that real reason was discrimination
  20. Limitation if remedies for Title VII mixed motive
    • If defendant can show would have made the same decision then limit remedies to:
    • Declaratory relief, injunctive relief, attorney's fees

    NO damages, reinstatement, hiring or promotion
  21. Mixed motive for ADA
    If plaintiff shows direct evidence that an impermissible reason was a substantial factor

    If defendant proves would have made the same decision absent the impermissible factor then avoid liability.
  22. AREA mixed motive
    There is none
  23. Systematic disparate treatment

    • Formal policy of discrimination
    • BFOQ

    OR pattern or practice of discrimination
  24. Defences to formal policy of discrimination under systemic DT
    Bona fide occupational qualification: sex, religion, national origin (NOT race) reasonably necessary foot operation of the particular business

    Bona fide seniority system

    Bona fide employee benefit plan
  25. Systematic disparate treatment: pattern or practice of discrimination
    Statistics: workers represented to applicants within space and skill

    Anectdotal evidence: someone testifies

    Historic evidence: never hired someone from a protected class

    • Defense:
    • Wrong comparison group

    Challenge the inference such as those people not applying

    assert statutory defense of bfoq
  26. Weber test for affirmative action
    Aim to remedy manifest imbalance

    In traditionally segregated job categories

    Cannot unduly trammel the rights of disfavored group

    • Burdens:
    • Prove systemic DT

    Produce legitimate non discriminatory reason of affirmative action

    Show it doesn't meet the Weber test
  27. Systemic disparate impact
    Racially neutral policy that has a discriminatory effect regardless of intent

    Protected close

    Particular employment practice: if multiple factors then look at bottom line


    Disproportionate impact: 4/5 acceptance rate
  28. Defenses to systemic disparate impact
    Challenge prima facie case

    Business necessity and job relatedness

    Professionally developed test if job related

    Bona fide seniority system

    Bona fide merit and piecework system

    For ADEA a reasonable factor other than age
  29. Rebuttal for systemic disparate impact for plaintiff
    Show alternative employment practice: serves same purpose, not discriminatory, reasonably expect the employer to use
  30. Harassment
    If an employee's terms or conditions of employment are altered due tot sex, race, disaiblity,... she has a claim for harassment.

    Quid pro quo: only applies for sex

    Hostile environment: applies for all others
  31. Quid pro quo harassment
    Only applies for sex

    Sexual conduct is a condition of tangible employment benefits, including salary, promotion, and continued employment

    No formal defenses

    Employer is vicariously liable
  32. Hostile work environment harassment
    For all protected classes

    • Must prove:
    • 1) member of a protected class

    2) conduct because of membership in the protected class

    3) conduct was unwelcome (only for sex harassment)

    • 4) conduct was severe or pervasive:
    • a) severity of discriminatory conduct, b) frequency of discriminatory conduct, c) physically threatening/humiliating, d) unreasonably interferes with your work performance.
  33. Employer liability in hostile work environment
    • From a supervisor: vicariously liable unless can show that:
    • 1) it sued reasonable care to prevent and promptly correct the harassment
    • 2) the employee unreasonbly failed to use reporting procedures created by the employer

    • From a co-worker: employer held liable under a negligence standard IF:
    • 1) the employer knew or should ahve known about the harassment
    • 2) the employer failed to take prompt remedial action
  34. Retaliation
    Title VII: unlawful to discriminate against an amployee who opposed an unlawful employment practice under Title VII or because he has made charges, testified, assisted, or participated in an investigation, proceeding, or hearing.

    ADEA: Unlawful for ANY employer to discriminate against an employee or applicant because he has opposed any practice made unlawful by the ADEA or because the individual has made charges, testified, assisted, or participated in an investigation, proceeding, or hearing. THIS IS BROADER

    ADA: No person shall be discriminated agaisnt because he has opposed an act made unlawful by the ADA or because such person has participated in an investigation or a proceeding under the ADA
  35. Retaliation statutorily protected expression
    Participation: partaking in a formal complaint with the EEOC, relevant state agency, or employer's structure

    • Opposition:
    • Behavior not in connection with the formally filing of a charge

    Must demonstrate a reasonable, goodfaith belief that hte conduct compmlained of is unlawful

    Show opposition even through responding to questions
  36. Retaliation prima facie case
    Engaged in statutorily protected expression

    Employer aware of the conduct

    Plaintiff suffered a materially adverse employment action directly plaintiff's employment or harm happening outside the workplace that would reasonably dissuade a reasonable worker from making or supporitng a charge of discrimination

    There is a causal connection between the statutorily protected expression and the adverse employment action
  37. Retaliation defendant's rebuttel and plaintiff's response
    Defendant must articulate some legitimate nondiscriminatory reason for the adverse employment action

    Plaintiff must then show that this was a pretextual reason
  38. Grooming and dress codes
    Gender specific dresscodes cannot impose an unequal burden on one sex.
  39. Religious discrimination
    • Employer must accommodate the religious practices and observances of its employees unless it would create and undue hardship
    • Only consider undue hardship if not reasonable accommodation has been offered. The employee does not need to choose the accommodation.

    Undue hardship is anything more than diminimis costs, economic or non-economic

    For disparate treatment the plaintiff must show employer knew of his religious beliefs

    Exemptions: 1) religious organizations, 2) religious curriculum

    BFOQ defense based on religion available
  40. ADEA statutory defenses
    Good cause for action

    Action based on a reasonable factor other than age
  41. Caps on damages
    • 15-100 employees: 50k
    • 101-200 employees: 100k
    • 201-500 employees: 200k
    • 501 and above: 300k
  42. Backpay
    All compensation plaintiff would have received in the absense of discrimination.

    Limited to 2 years.

    Begins on date that first lost wages and ends on date of judgment, death of employee, or when employee rejects an offer of reinstatement.