1. Disparate Treatment
    • Intentional discrimination
    • "singled out"
    • Direct evidence
  2. Disparate Impact
    • Doesn't need to be intentional
    • Applies to a "class" of people
    • Indirect evidence
  3. Prove disparate impact.
    • 1) Plaintiff must show defendant had some requirement that was "facially neutral"
    • 2) Plaintiff must prove action has a disparate impact on a protected class - use STATISTICS

    * Defendant can prove policy is truly job related, then policy will be OK
  4. What are steps of the McDonnell Douglas test?
    • 1)  Plaintiff proves they belong to a protected class (race, color, religion, sex, national origin)
    • 2)  Plaintiff proves they are qualified for the job
    • 3)  Plaintiff proves they suffered an adverse employment action
    • 4)  Plaintiff proves they were replaced, preferably by someone of a different category.
    • * if defendant can prove a non-discriminatory reason for their actions, case is lost by plaintiff
  5. Name 8 remedies for a winning plaintiff and explain each.
    • Reinstatement
    • Injunction
    • Back Pay
    • Front Pay
    • Compensatory Damages
    • Punitive Damages
    • Attorney's Fees (fee shifting)
    • Reimbursement of costs/expenses
  6. What are the 6 procedures when filing an EEOC claim?
    • 1)  Plaintiff goes to EEOC and files charge of discrimination within 180 days (300 days in NJ)
    • 2)  Defendant files a statement of position (responds to charge)
    • 3)  Mediation program - tries to settle case, both sides must agree
    • 4)  Investigation of claim by EEOC
    • 5)  Determination by EEOC of cause or no cause
    • 6)  Right-to-sue letter issued to plaintiff whether cause is found or not; allows plaintiff to file suit within 90 days
    • * Employer must have 15+ employees
  7. What is NJLAD?
    New Jersey Law Against Discrimination - gives employees 2 years to file a discrimination lawsuit, so NJ doesn't need EEOC
  8. Define labor law
    Companies and unions, collective bargaining agreements
  9. Define Employment Law
    ER/EE direct relationship; protects workers who don't have unions; CIVIL CASES
  10. Define mediation
    Goal = settlement of case outside of court; mediator cannot force parties to settle
  11. Define arbitration
    ER v. Union; makes decision for both parties; binding or advisory
  12. Define certiarai
    Permission to have your case heard by Supreme Court; usually only granted to very serious cases like those involving death penalty
  13. Define litigation
    Lawsuits, court system
  14. Define legal precedent
    • 1 - All courts should follow their own prior decisions
    • 2 - Lower courts must follow higher courts' decisions
  15. Define grievance
    Dispute over terms
  16. Define common law
    Tort Law - 49 states follow, only Louisiana does not; developed over centuries from British common law
  17. Define pretext
    A stated reason is false
  18. Define preponderance
    The level of proof required for employment cases; 51% or better, otherwise case should go in favor of defendant
  19. Define US Supreme Court
    Highest federal court, 9 justices appointed by president and confirmed by senate; lifetime appointments
  20. Define US Court of Appeals
    (Appellate Courts) Middle Federal court, arranged in circuits, 3 judges per case
  21. Define US District Court
    Lowest level of Federal court system, trial court, 1 judge, can be bench or jury trial
  22. Explain NJ Supreme Court
    Highest NJ court, 7 justices; appointed by governor, approved by senate to a 7 year initial term; may be reappointed and granted tenure until age 70
  23. Explain NJ Appellate Division
    Middle level of NJ state court system, 3 judges review briefs
  24. Explain NJ Law Division
    Lowest NJ court, trial court
  25. What are the four exceptions to employment-at-will?
    • 1 - Contract
    • 2 - Constitution (US or NJ) - only applies when employer is a public entity
    • 3 - Laws - Title VII, whistleblower
    • 4 - Common Law (Tort Law) - one party harms another through negligence
  26. Explain the anatomy of an employment lawsuit - what happens after EE consults attorney and attorney sends ER a demand letter?
    • EE files complaint
    • ER files answer
    • Parties go to mediation
    • Discovery - interrogatories, requests for production of documents, deposition
    • Motion for Summary Judgement filed by ER
    • Trial - bench preferred for breach of contract
    • Appeals - affirm or reverse & remand
  27. Pierce v. Ortho
    • NJ Supreme Court, 1980
    • Whether to create a public policy exception to employment-at-will
    • Yes - based on a law, administrative ruling, or code of ethics
  28. Woolley v. Hoffmann-La Roche
    • NJ Supreme Court, 1985
    • Whether certain terms in a company's employment manual may contractually bind the company (EAW exception)
    • Yes - ER must include a clear and prominent disclaimer, otherwise an implied promise that an EE will only be fired for cause
  29. Pickering v. Board of Education
    • US Supreme Court, 1968
    • Whether defendant's termination of plaintiff violated plaintiff's 1st Amendment rights (EAW exception)
    • Yes - lies vs errors, termination illegal based on errors.  False statements NOT protected by 1st Amendment
  30. City of Ontario v. Quon
    • US Supreme Court, 2010
    • Whether defendant (city) violated plaintiff's 4th Amendment rights via an unreasonable search & seizure (EAW exception)
    • No - because the search was deemed reasonable, petitioners did not violate respondent's rights
  31. McDonnell Douglas v. Green
    • US Supreme Court, 1973
    • What standard can be used to prove a Title VII case?
    • Disparate treatment; McDonnell test created; reverse & remand
  32. Griggs v. Duke Power
    • US Supreme Court, 1971
    • Whether an employer's policy that is facially neutral creates a disparate impact
    • Yes - employer violated Title VII
  33. Title VII of the Civil Rights Act
    • 1964
    • President Johnson
    • Outlaws discrimination on basis of race, color, religion, sex, or national origin
    • Immutable characteristics (except religion)
    • Federal law does NOT prohibit sexual orientation discrimination, but NJ law does
  34. Sexual Harassment
    • Vioates Title VII on grounds of gender/sex; also violates NJLAD
    • "unwanted sexual advances"
    • Quid pro quo - when a superior demands sexual favors of a subordinate in exchange for work benefits; power imbalance
    • Hostile work environment - no imbalance, but offensive remarks, things displayed, etc
  35. Quid pro quo
    When a superior demand sexual favors of a subordinate in exchange for work benefits; power imbalance
  36. Hostile work environment
    • No imbalance of power
    • offensive remarks made, offensive items displayed, etc
Card Set
Employment Law, first class thru midterm