PA: Employment

• (1) Employment Context
• >> Employer-employee relationship.
• (2) Statute
• >> Title VII - Discrim (race, color, religion, sex, nat'l origin)
• >> ADEA - Age Discrim
• >> ADA - Disabilities
• (3) Procedural Requirements
• (4) Claim (type)
• (5) Particular Issues
• (6) Remedies

• Key: employer must have control over employee. Includes independent contractors.
• Control: hire/fire, supervise, higher position in the organization, influence in the organization, share in profits/losses/liabilities of the organization, individ. intended to be an employee.

• Discrim: failure or refusal to hire or to discharge any individual or otherwise discriminate with respect to compensation, terms, conditions or privileges . . . Note: Also prohibits categorization based on a way that would deprive or tend to deprive employees of employment opportunities b/c of aforementioned factors.
• Categories: Race, color, religion, sex (biological, not orientation), nat'l origin (ancestry, not citizenship).
• Plaintiffs: Race, color, sex, religion, national origin.
• Defendants: Employers (15 or more employees), Labor Unions, Employment Agencies.
• Exemptions: Religious organizations, Indian tribes, private membership clubs.

NOTE: English fluency or accent-related requirements, as with all necessary job skills and abilities, must be related to the performance of the job in order to constitute business necessity.

• What: Age Discrimination in Employment Act
• Gen: Employer can't refuse or fail to hire, or discharge, any individual or discriminate against any individual WRT compensation/conditions/privileges b/c of age.
• Also can't limit/segregate/ect. employees in a way which would deprive or tend to deprive individuals of employment opps, or in a way that neg affects status, b/c of age.
• Plaintiffs: Must be 40 and allege that you were discriminated against in favor of someone younger.
• Defendants: Employers (20 employees or more), Employment Agencies, Unions.
• Exemptions: States (11A immunity)

• **MCDONNELL DOUGLAS** ANALYSIS
• Plaintiff must prove by a perponderance of the evidence --
• (1) Statute requirement:
• >> ADEA -- Prevents an employers from discharging an employee or otherwise discriminating against any employee because of that individual’s age.
• >> ADA -- Prevents discrim against qualified individuals w/ disabilities (actual, record, regarded).
• >> TITLE VII -- Prevents discrimination on the basis of race, religion, sex, or national origin.
• (2) [_____] qualifies as an employer subject to the law.
• >> ADEA -- employs 20 or more employees.
• >> ADA -- employs 15 or more employees.
• >> TITLE VII -- employs 15 or more employees.
• (3) Plaintiff must show that he was an employee of the company.
• (4) Plaintiff must show that he was in the protected class and suffered an adverse empl. action.
• >> ADEA -- over age of 40 at the time in which his employer took adverse action against him.
• >> ADA -- qualified indiv w/ disability
• >> TITLE VII -- in the race, color, religion, sex or nat'l origin group at issue.
• (5) Plaintiff must show that he was qualified for the job in which he was fired.
• (6) Plaintiff must show that he was replaced by someone not in the protected class.

• RESULT: Burden shifts to Defendant-Employer to show a LNDR for the employment action.
• >> If D produces such a reason, burden shifts back to Plaintiff to prove PRETEXT.

• Gen: Can't discriminate against qualified individuals on basis of a disability WRT job app procedures, hiring/firing, advancement, compensation, training, ect.
• Note: Must make reasonable accommodations to known physical/mental limitations of an otherwise qualified individual with a disability UNLESS org can demonstrate the accommodation would cause undue hardship.
• Plaintiffs: (1) actual disability, (2) record of a disability, (3) regarded as having a phys/mental disability (easiest).
• >> "Qualified Individual": Individual w/ a disability; who w/ or w/o reasonable accommodation; can preform the essential functions of the job.
• >> "Disability": mental or phys impairment; that substantially limits; a major life activity.

• Defendants: Employers (15 or more employees -- each working day for 20 or more calendar wks in current/preceding yr)
• Exemptions: States under 11A.

• (1) File a charge with the PA Human Rights Comm'n (w/in 180 days of alleged violation).
• >> PHRC gets 60 days of exclusive jdx.
• (2) File a charge with the EEOC.
• >> Must file w/in 300 days of the alleged incident or w/in 30 days after notice that the state agency has terminated proceedings -- whichever is earlier.
• (3) Decide when unlawful act occurred.>> Violation clock starts ticking when employee learns of employer's decision to take adverse action.
• >> Discim pay cases: each new paycheck is a new act of discrim; resets the clock.
• >> Hostile environment claims: not time-barred if all acts constituting claim = same unlawful practice, and at least one act falls w/in 180 period.
• (4) Obtain right to sue letter.
• >> Charging party may demand suit letter from EEOC once 180 days from filing a charge w/ EEOC have elapsed, or continue with EEOC procedures.
• >> EEOC either issues: (1) dismissal (no reasonable cause); or (2) right-to-sue letter (reasonable cause).
• >> NOTE: ADEA: does not require a right to sue letter.
• (5) File suit in state/fed court.
• >> May file in either court w/in 90 days of the receipt of the notice of dismissal of the suit letter.

• (1) Individual Disparate Treatment
• (2) Systematic Disparate Treatment
• (3) Disparate Impact
• (4) Harassment
• (5) Retaliation

• GEN: Employer treats employee diff b/c prohibited characteristis.
• KEY: Intent -- must have intended to discriminate.
• TYPES: Single motive and mixed motive

• Single Motive (McDonnell Douglas Test): Plaintiff must make a prima facie case by proving by a preponderance --
• (1) Member of protected class;
• (2) Qualified for the position (perfomed job at adeq. level);
• (3) Applied for an open position (hiring or promotion);
• (4) Adverse employment action;
• (5) Position remained open or filled w/ someone outside your protected class.
• EFFECT - Burden Shift: presumption of discrimination created. Employer must show legitimate, non-discrim reason for the employment action. If burden met, action likelydropped.
• >>"Valid Reason": Anything -- doesn't even have to be work related. Can even claim that fired b/c age, not race.
• EFFECT - Burden Shift: Back to plaintiff. Must prove real reason was discrimination and that it was the determinative factor. LNDR not real reason.

Mixed Motive:

• (1) Title VII: plaintiff must demonstrate that impermissible reason was a motivating factor in the decision.
• >> D must then demonstrate by a perponderance of evidence that it wold have made the same decision in the absence of the impermissible reason.
• >> If D satisfies burden, court may grant relief, att'y fees and costs, but not award damages, reinstatement, hiring/promotion.

• (2) ADA (Pricewaterhouse Framework): P must present direct evidence that an impermissible reason was a motivating factor in D's decision.
• >> D must then show, by a perponderance, that it would have made the same decision bsent the impermissible reason.

(3) ADEA: No mixed motives framework.

• GEN: Employer discriminates against an entire class.
• KEY: Intent.
• METHODS: (1) Formal policy of discrimination; or (2) Practice of discrimination.

• Formal Policy of Discrimination
• (1) P proves D has facially discrim policy (ie. only women waitresses at Hooters)
• (2) D offers statutory defense:
• >> (a) Bona Fide Occupational Qualification: requirement reasonably necessary to the normal operation of the particular business. BUT: No race BFOQ.
• >>>> (i) Qualification reasonably necessary to normal operation of business; AND
• >>>> (ii) Discrim category is a proxy for the qualification b/c (1) reasonable reason to believe that sub all ppl in class unable to perform safely/efficiently, or (2) some employees in the class possess a trait precluding safe/efficient job performance and practically impossible to deal w/ them on an individual basis.
• >>>> Look for essence of job.
• >> (b) Bonafide Seniority System
• >> (c) Bonafide Employee Benefit Program

• Steps:
• (1) P prove that employer's standard operating procedure discriminates against a protected class.
• >> Statistics: so long as correct in geographical space and skill. Note that an unskilled job can use regular demographic.
• >> Antidotal evidence
• >> Historic evidence
• (2) D Rebuttal: challenge factual basis of P's prima facie case, challenge the inference of discrim intent in statistics, and/or assert a defense (bona fide occupational qualifications -- where job qualification relates to the essence of the employer's biz).

• Voluntary Affirmative Action
• Title VII: lawful. Weber Test: private, voluntary, race-conscious affirmative action plans must: (i) aim to remedy a manifest imbalance; (ii) in traditionally segregated jobs; (iii) and cannot unduly trammel the rights of disfavored groups.

• GEN: Employer's facially neutral policies, regardless of intent, adversely affect a protected class more than others.
• KEY: NO Intent.
• METHOD:
• (1) P must show that:
• >> (a) he's in a protected class;
• >> (b) particular employment practice causes the impact (may use "bottom line" exception);
• >> (c) causation -- causal link between the practice used by the employer and the resulting impact;
• >> (d) disproportionate impact (EEOC 80% rule -- where protected group pass rate is less than 80% of the non-protected remainder's pass rate, evidence of adverse impact.).
• (2) D rebuttal:
• >> Challenge P's prima facie case -- practice not causing impact, or biz necessity and job-related practice (BIG DEFENSE).
• >> OK Tests: professionally developed tests, bona fide senority systems, bona fide merit/piecework systems (pay based on amount of work).
• >> In ADEA claims: employer can defend by showing decision based on "reasonable factors other than age."
• (3) P response: alternative employment practice achieves employer's goals without the discrim impact.
• >> Serves same purposes as contested practice.
• >> Not discriminatory
• >> Reasonable to expect the employer to use (reasonable cost).

• GEN: Prohibitions on discrimination -- if employee's terms/conditions of employment altered due to sex, race, disability, ect., she has a harassment claim. Same sex harassment claims permitted.
• >> Quid Pro Quo (Sex Harassment only -- sex for tang employment benefits)
• >> Hostile Work Environment: (1) member of protected class, (2) conduct b/c class member, (3) behavior unwelcome/uninvited, (4) behavior severe/pervasive, (5) unreas. altered conditions of employment by creating a HWE, AND (6) employer is liable.
• >>>> Consider frequency, severity, effect.
• >>>> GEN: Must be severe and pervasive

• Employer liability for other employees' conduct:
• >> Hostile environment created by supervisors: employer liable unless satisfies affirmative defense:
• >>>> Used reasonable care to prevent and promptly correct harassment, AND employee unreasonably failed to use reporting procedures created by employer.
• >> Hostile environment created by co-workers: employer liable IF:
• >>>> (1) Employer knew or should have known about the harassment AND (2) employer failed to take prompt remedial action.

GEN: Employers cannot retaliate against employees for exercising their rights under the anti-discrim clauses.

• METHOD: P must show --
• (1) P engaged in statutorily-protected conduct.
• >> Two types of claims:
• >>>> (i) Opposition (oppose employer conduct); AND
• >>>> (ii) Participation (turning to EEOC or other agency).
• (2) D aware of conduct.
• (3) P suffered adverse employment action.
• >> Adverse action -- need not be directly related to P's employment; may include conduct outside of the workplace, but it must be materially a`dverse.
• (4) Causal cxn b/wn statutorily protected expression and adverse employment action (close in time).

• EFFECT: Burden shift to D -- must show LNDR for adverse employm. action (ie. unreas. opp.)
• >> But disloyalty alone is NOT sufficient.
• IF MET: P must then prove that the D's professed reason is pretext for a discrim motive.

KEY: Pregnancy is a Title VII issue.

• "Because of Sex": pregnancy, childbirth or related medical conditions.
• >> Includes abortion for 3d Circuit.

• EFFECT: If affected by the aforementioned, may not be treated for employment-related purposes from persons not so affected but similar in their ability or inability to work.
• >> RESULT: Pregnancy and related conditions ≠ be treated diff. than other med conditions.

Pregnancy discrim = sex discrim.

• GEN: Gender specific grooming and dress codes do not by themselves violate Title VII.
• BUT: If impose an unequal burden on one sex, UNLAWFUL.
• NOTE: May also give rise to religious discrim claims.

• GEN: Sex-orientation NOT a protected class.
• BUT: Discrim on basis of stereotypes IS unlawful,
• >> Firing a man b/c he's gay is not.
• >> Cannot fire a man b/c he's not masculine enough.

• ACCOMMODATION: employers must reasonable accommodate the legitimate practices and observances of their employees.
• EXCEPTION: Employer demonstrates doing so would impose undue hardship on his biz.
• >> Consider undue hardship only if there's no reasonable accomm. that has been offered.
• >>>> Undue Hardship: Anything more than de minimus cost on employer, econ. / non-econ.
• EXEMPTIONS (for religion discrim, not sex or other discrim.):
• (1) religious orgs AND
• (2) religious schools/curric. (ie. relig institution, curric. directed towards propag. of religion).

NOTE: In individual disparate treatment case -- P may need to show that D aware of P's religious beliefs.

NOTE: Once reasonable accommodation established, game over.

• STATUTORY DEFENSES:
• (1) Good cause
• (2) Reasonable factors other than age

• EXEMPTONS:
• (1) Bona fide executive exception:
• >> Mandatory retirement age for execs and high policy-making positions (65) if defined benefits of at least 44K/yr.
• (2) Public safety officers;
• (3) Bona fide employment benefit plans exception.
• >> As long as same amount spent on everyone (ie. oldest workers make no less than the youngest).
• (4) Early retirement incentives -- voluntary plan ok.

ARBITRATION CLAUSE: permissible re: ADEA claims as a part of collective bargaining agmts.

• GEN: P must be a qualified individual -- actual, record, regarded diability -- discriminated against on the basis of diability.
• >> P must be able to perform the essential functions of the job with or without reasonable accommodations.
• >>>> Reasonable accommodations includes: reassignment of employee to an appropriate position (if avail).

• TERMS
• Disability: actual, present disability.
• >> Physical or mental impairment substantially limits one or more of major life activities of an individual.

• Physical or Mental Impairment
• >> Physiological disorder/cond. -- cosmetic disfigurement, anatomical loss, mental disorder.
• >> Not included: phys characteristics like weight/height/eye color w/in normal range.

• Major Life Activities
• >> Include: seeing, hearing, speaking, breathing, lifting, ect.
• >> ALSO: WORKING!
• >> ALSO: Major bodily functions.

• Reasonable Accommodation
• KEY: Cost! Would it pose an unreasonable hardship?
• >> Making the existing facilities acessible to and usable by individuals w/ diabilities
• >> Adjusting work schedules
• >> Modifying examinations
• >> Providing readers/interpreters.

• EMPLOYER DEFENSES:
• (1) LNDR
• (2) Undue hardship
• (3) Direct threat to health/safety that can't be eliminated by reasonable accommodation.
• (4) Standards that are job-related and consistent w/ biz necessity.
• >> Employer can screen out candidates, deny job/benefits to individuals with a disability so long as such standards are consistent w/ biz necessity and performance cannot be accomplished by reasonable accomodation.

• NOTE: Drug/alcohol users
• (1) Current users of illegal drugs are excluded from ADA coverage.
• (2) BUT: If a drug user is rehabilitated and has been drug-free for a significant period, then covered.

• MED EXAMS
• GEN: Employer may condition an offer of employment on the results of a medical exam ONLY if all entering employees are subject to the medical exam and the results are confidential.
• >> REQ:Must be job related and consistent with business necessity.
• NOTE: Testing for illegal use of drugs ≠ considered a medical exam.

• Compensatory Damages:
• >> Title VII and ADA for intentional discrimination.
• >> Awarded for future pecuniary losses and also for nonpecuniary (emotional pain, inconvenience, mental distress).

• Punitive Damages:
• Compensatory Damages:
• >> Title VII and ADA for intentional discrimination with malice or with reckless indifference.
• >>>> BUT: Employer not vicariously liable for drim by management UNLESS: liability is appropriate AND employer did not use GF efforts to comply.
• >> Cap based on number of employees.

• Liquidated Damages
• >> ADEA: willful violations (unpaid wages, liquidated damages in amount equal to the amount of unpaid wages recovered).

• Backpay:
• GEN: Normally the date that discriminatee first lost wages due to the discrimination BUT is limited to the two years before the filing of a charge with the EEOC.
• NOTE: Duty to mitigate -- reduced by amounts earned and those that could have been earned w/ reasonable diligence.

• Front Pay
• GEN: Economic losses occurring after court's judgment up to the date of reinstatement or instatement.
• >> Front pay may be awarded as a substitute for reinstatement.

• GEN: Instatement or reinstatement AND retroactive seniority.
• ALSO: Courts have imposed affirmative action requirements.

GEN: Each statute provides for the recovery of atty fees/costs to the prevailing party.

• TITLE VII: Court has discretion in awarding of fees to prevailing party.
• ADEA: requires court to award atty fees and costs to a prevailing nonfederal discriminatee but does not authorize the court to make such an award to a prevailing employer.
• ADA: follows ADEA, but may recover litigation expenses, and EEOC and courts permitted to make a fee award.

FEES TO DEF: discretionary if action frivilous, unreas., ect.