Employment discrimination

Hire or fire or set rules and regulations

Race

Color

Sex

Religion

National origin

Employees 15 or more

Labor unions

Employment agencies

• Exceptions:
• Religious organizations

Private member clubs

Indian reservations

Discriminated against someone 40 or older and replace with younger person

Employers 20 or more

Labor unions

Employment agencies

Discriminate against qualified individual due to a disability

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

15 employees

Actual present disability

Record of disability

Regarded as having a physical or mental disability

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.

Individual with a disability

Who with or without a reasonable accommodation

Can perform the essential functions of the job

• 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.

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.

Individual disparate treatment

Systemic disparate treatment

Disparate impact

Harassment

Retaliation

Intent

Single motive: McDonnell Douglas

• Mixed motive: motivating factor
• Limited remedies

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

• 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

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.

There is none

Intent

• Formal policy of discrimination
• BFOQ

OR pattern or practice of discrimination

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

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

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

Racially neutral policy that has a discriminatory effect regardless of intent

Protected close

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

Causation

Disproportionate impact: 4/5 acceptance rate

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

Show alternative employment practice: serves same purpose, not discriminatory, reasonably expect the employer to use

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

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

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.

• 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

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

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

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

Defendant must articulate some legitimate nondiscriminatory reason for the adverse employment action

Plaintiff must then show that this was a pretextual reason

Gender specific dresscodes cannot impose an unequal burden on one sex.

• 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

Good cause for action

Action based on a reasonable factor other than age

• 15-100 employees: 50k
• 101-200 employees: 100k
• 201-500 employees: 200k
• 501 and above: 300k

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.