Employment Discrimination

Question 1

Harassment

Answer 1

employer alters terms, conditions, or privileges of employment because of protected status

Question 2

Two types of evidence

Answer 2

Direct and Circumstantial

Question 3

direct evidence

Answer 3

document or statement that shows on its face discriminatory critera used as basis for action

MUST relate to protected class, proximate in time, made by person in authority, related to decision

stray remarks - comments unrelated to decision do not count

Question 4

Prima Facia Case

Answer 4

Legally sufficient to establish a fact or a case unless disproved.

Question 5

McDonnel Douglas Test

Answer 5

Four step test used to make a case of disparate treatment. 1) member of a protected class. 2) applied for the job and was qualified. 3) rejected. 4) Someone else got the job or continued to seek applicants w/ the plaintiff’s qualifications.

Question 6

Impact of EEOC finding in court case

Answer 6

None. EEOC finding is irrelevant in court.

Question 7

Threshold Requirements for Employment Discrimination Case

Answer 7

1. Employer of 15(Title VII or ADA) or 20(ADEA) employees

Use traditional agency law to determine employee v. independent contractor

2. Statute
3. Protected Class

Question 8

Title VII prohibits…

Answer 8

Discrimination based on race, color, national origin, sex, or religion

Question 9

ADA

Answer 9

Americans with Disabilities Act

Protects qualified individuals on basis of disability

Question 10

General Limitations for an ADA claim

Answer 10

Must have 15 or more employees

Cannot sue state for monetary damages (11th Amendment)

Medical exams not permitted except for offer of employment or business necessity

Question 11

Failure to Accomodate Claim elements for disability

Answer 11

Claim for ADA

Prima Facie case:

1. Plaintiff has disability within ADA definiton
2. Plaintiff is qualified to perform the essential job functions
3. Plaintiff suffered an adverse employment action as a result of discrimination

Question 12

Three types of disabilities under the ADA

Answer 12

actual disability - physical or mental impairment that substantially limits one or more major life activities.

record of disability - history of actual disability

regarded as having a disability - no actual disability, but Employer believes Employee has a disability

Question 13

What does substantially limits mean under the ADA?

Answer 13

Courts will use broad interpretation.

Need not prevent the activity. Ignore mitigating circumstances.

Episodic impairment is allowed. Drug/alcohol use is not disability.

Question 14

qualified to perform

Answer 14

Plaintiff has the burden to prove they possess the job-related skills and the ability to perform

Question 15

essential functions of a job

Answer 15

fundamental duties of a job

Question 16

Adverse employment action

Answer 16

Examples wage loss, demotion, discharge, constructive discharge

Question 17

constructive discharge

Answer 17

Employer makes working conditions intolerable such that a reasonable person would feel compelled to resign

Question 18

reasonable accomodation

Answer 18

An interactive process between the employer and the employee to find a mutally agreeable way for the individual to perform

Defense: undue hardship on employer

Question 19

Title VII applies to

Answer 19

Employers with 15 or more employees

private membership clubs, Indian tribes are exempt

Question 20

race

Answer 20

racial group, perceived racial group, or race-linked characteristics

Question 21

color

Answer 21

when the particular hue of an individual’s skin causes discrimination

Question 22

national origin

Answer 22

birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group

Employer MAY adopt English-only rule to promote safety or efficiency, but not for discriminatory reasons

Question 23

religion

Answer 23

any bona fide religion

mainstream is not necessary

Question 24

sex

Answer 24

person’s gender AND sexual orientation, gender identity

Question 25

ADA applies to

Question 26

actual disability

Answer 26

physical or mental impairment that substantially limits one or more major life activities.

Question 27

record of disability

Answer 27

history of actual disability

Question 28

regarded as having a disability

Answer 28

no actual disability, but Employer believes Employee has a disability

Question 29

Undue hardship (defense to ADA)

Answer 29

action that would require significant difficulty or expense

Question 30

Medical Examination requirements

Answer 30

Employer allowed to make medical exam a condition of employment

Question 31

Age Discrimination in Employment Act (ADEA)

Answer 31

unlawful for an Employer to discharge or discriminate against any individual because of age Applies only to employees age 40 and older

Question 32

ADEA applies to

Answer 32

Employers with 20 or more employees Plaintiff must be age 40 or older EXEMPT Employees: Bona fide executives Safety officers Elected and Appointed officials States cannot be sued for money damages (11th Amend immunity) State employee can seek injunction

Question 33

ADEA elements

Answer 33

Claimant must show: 1) 40 years old or older 2) suffered an adverse employment action 3) qualified for position 4) replaced with another employee who was "sufficiently younger to support an inference of animus"

Question 34

Exempt Employees in ADEA claim

Answer 34

**Bona fide executives** - mandatory retirement allowaed for high policymaker employees at 65 years when annual retirement benefit is greater than 44,000 and been in position for at least 2 years **Safety officers** - mandatory retirement allowed, age restrictions at hiring **Elected and Appointed Officials** - mandatory retirement allowed

Question 35

Defense to ADEA claim

Answer 35

**Bona fide occupational qualification (BFOQ)** Affirmative defense that treatment of older employees is reasonably necessary for normal operation of business **Reasonable factor other than age** can have disparate impact if based on reasonable factor other than age

Question 36

Elements of a Bona fide occupational qualification

Answer 36

Bona fide occupational qualification (BFOQ) Affirmative defense that treatment of older employees is reasonably necessary for normal operation of business Elements: 1) Must be reasonably necessary for mission 2) impractical to assess individually 3) must have factual basis

Question 37

Are early retirment plans permissible under the ADEA?

Answer 37

YES! Voluntary plans are allowed Bona fide seniority systems and benefit plans are permissible Older Workers Benefit Protection Act allows waiver of ADEA

Question 38

Constructive Discharge

Answer 38

Employer makes working conditions so intolerable that a reasonable person would have felt compelled to resign

Question 39

Types of Employment Discrimination Claims

Answer 39

* Individual disparate treatment * Systematic disparate treatment * Disparate impact * Failure to Accommodate (religious and disability only) * Harassment * Retaliation

Question 40

Individual disparate treatment

Answer 40

Claim available under Title VII, ADA, ADEA Employer intentionally discriminated against employee on basis of protected class

Question 41

circumstantial evidence

Answer 41

any evidence that affects the probability of an event

Question 42

Individual disparate treament claims based on direct evidence...

Answer 42

Establishes all necessary requirements for claim

Question 43

Individual disparate treatment claim based on circumstantial evidence...

Answer 43

Plaintiff must establish **prima facie** case then **Burden shifts** to employer to offer a **legitimate non-discriminatory reason** for treatment, if succeeds then Plaintiff has **ultimate burden** of persuasion to show employers LNDR is only pretext

Question 44

Prima facie case for disparate treatment

Answer 44

* Plaintiff **member** of protected class * **Qualified** for the position * Satisfactory **performance** * Suffered **adverse employment action** * **Inference** of discriminatory action (similary situated treated differently)

Question 45

Prima facie case for failure to hire or promote

Answer 45

* Plaintiff member of protected class * Applied for position which was qualified * Denied hire or promotion * Position remained open or employer continued to seek applicants or filled by another person outside of protected class

Question 46

legitimate, non-discriminatory reason

Answer 46

any explanation offered that does not invoke protected characteristic Rebuts the presumption of discrimination

Question 47

pretext

Answer 47

the given reason is not the real, discriminatory reason for the action

Question 48

Mixed-motive cases in disparate treatment

Answer 48

**Title VII** - show motivating factor for adverse action **ADEA** - show by a preponderance of evidence that discrimination was the "but-for" cause of adverse action

Question 49

after-aquired evidence

Answer 49

legitimate grounds for adverse employment action that is discovered after termination or not hiring employee Does not provide defense for liability Does limit remedies. Front pay/reinstatement is unavailable.

Question 50

Systematic disparate treatment

Answer 50

intentional discrimination against entire class of employees

Question 51

Prima facie case of systematic disparate treatment

Answer 51

* Employer has a facially discriminatory policy OR * Employer engages in pattern or practice of discrimination

Question 52

Discriminatory Policy

Answer 52

Facially discriminatory. Defense: Bona fide occupationational qualification (never for race)

Question 53

Pattern or practice of discrimination

Answer 53

Standard procedures discriminate against protected class

Question 54

Disparate impact claim

Answer 54

facially neutral policy that disproportionately and adversely impacts a protected class. Motive is not needed.

Question 55

How will the court determine "impact" in a disparate impact claim?

Answer 55

Plaintiff must show practice disproportionately excludes a protected class **4/5 rule -** when protected class rate is less than 4/5 the rate for the highest group

Question 56

Defense for disparate impact claim

Answer 56

**Business necessity** - practice is job-related and consistent with business necessity **DEFEAT DEFENSE:** **Less discriminatory alternatives -** alternative policy could achieve necessity without discriminatory effect

Question 57

Failure to accomodate claim for religion under Title VII

Answer 57

Employer must reasonably accomodate employee sincerely held religious belief **Prima facie elements:** 1. Plaintiff holds bona fide religious belief that conflicts with job 2. Plaintiff informed employer of his belief 3. Suffered adverse employment action caused by failed job requirement

Question 59

What are the two types of harassment claims?

Answer 59

1. Quid pro quo - only applies to sexual harassment 2. Hostile work environment

Question 60

Quid Pro Quo claim

Answer 60

Applies only to sexual harassment **Prima Facie elements:** 1. Alleged harasser is supervisor 2. Supervisor made sexual advances 3. Supervisor carried out threat of consequence for refusal to submit 4. Adverse employment action resulted from refusal to submit

Question 61

Hostile Work Environment

Answer 61

Harassment does not result in tangible employment action ## Footnote Unwelcome and offensive sexual conduct or conduct on account of status as a member of protected class Conduct severe and pervasive that it alters terms and conditions of employment Creates an abusive work environment Reasonable person standard

Question 62

Defenses to Hostile Work Environment

Answer 62

By Supervisor: * ER took reasonable measures to prevent and correct behavior * EE unreasonably failed to prevent or take advantage of prevention By Co-Worker: * ER liable if knew or should have known about harrassment and failed to take prompt and appropriate corrective actions

Question 63

Retaliation claim

Answer 63

Employer may not retaliate against employee for engaging in protected activities

Question 64

What are the elements of a retaliation claim?

Answer 64

Prima Facie elements: * Employee engaged in protected activity * Employer took adverse action * Causal connection between protected activity and adverse action

Question 65

Process for bringing employment discrimination claim

Answer 65

1. File charge with EEOC or PHRC 1. Charges under oath, identify parties, and describe behavior 2. Statute of limitations - 180 days 2. Investigation and conciliation 1. Notice of dismissal - EEOC finds without merit 2. Reasonable cause - EEOC finds merit, attempts conciliation 3. Employee demand - Employee demands right-to-sue letter after 180 days from filing 3. Filing suit in federal court 1. 90 days from right-to-sue letter or dismissal

Question 66

Remedies for Employment Discrimination Claims

Answer 66

* Compensatory damages * Emotional distress * Punitive damages * Liquidated damages * Attorney's fees * Reinstatement and instatement * Back pay * Front pay

Question 67

Compensatory damages in Employment Discrimination claims

Answer 67

actual pecuniary and non-pecuniary losses as a result of discrimination Available for Title VII and ADA with cap Emotional distress - must show outward manifestations of harm

Question 68

Punitive Damages in Employment Discrimination claims

Answer 68

Available to punish employer who acts with malice or reckless indifference Available for Title VII and ADA

Question 69

Liquidated damages in Employment Discrimination claims

Answer 69

ADEA allows for statutory liquidated damages equal to "lost wages" Not available for Title VII and ADA claims

Question 70

Attorney's fees in Employment Discrimination claims

Answer 70

Discretion of court to award to prevailing party Available under Title VII, ADA, ADEA

Question 71

Reinstatement and instatement

Answer 71

**Reinstatement** - employer ordered to give employee job back **Instatement** - employer ordered to hire employee

Question 72

Back pay

Answer 72

equitable remedy from date of first lost wages through date of judgment mitigation required for Title VII and ADEA

Question 73

Front Pay

Answer 73

equitable remedy Compensates for economic loses that will occur until Plaintiff in rightful position Time limit is usually imposed Mitigation requiredjjm