Review Flashcards
(67 cards)
1
Q
What is at will employment?
A
employer and employee can terminate at ant time, even for nefarious reasons
2
Q
what are the 2 exceptions to at-will employment?
A
contract to the contrary, or violation of anti-discrimination statute
3
Q
what are the protected classes under title 7?
A
sex, race, color, national origin, religion
4
Q
what does sex refer twin title 7?
A
pregnancy, gender, sexual orientation, harassment, and related conditions
5
Q
what does the ADEA cover?
A
age, but only those 40 and up
6
Q
what does the ADA protect against?
A
discrimination against qualified individuals with a disability
7
Q
what is the protection of sec1981?
A
protects against racial discrimination in the formation and execution of contracts
8
Q
what groups are not protected from anti-discrimaition statutes?
A
owners/shareholders, and independent contractors
9
Q
which statutes have an employee threshold of 15?
A
title 7, ADA
10
Q
which statute has a employee threshold of 20?
A
ADEA
11
Q
what is the employee threshold of sec1981?
A
there is none
12
Q
under what circumstances will a supervisor be liable as an individual?
A
sec1981 claim, or, in the event of harassment
13
Q
when is McDonnel Douglass used?
A
for disparate treatment claims where there is no direct evidence
14
Q
what are the 3 steps of a general McDonnell Douglass analysis?
A
- plaintiff establishes a prima facia case
- defendant can rebut this case by producing evidence that a legitimate, non-discriminatory reason was the motive of the adverse employment action
- plaintiff can prevail by showing that the articulated reason was pretext for discrimination
15
Q
what are the 4 things to establish a prima facia case in the event of hiring discrimination?
A
- person was in protected class
- applied for job and was qualified
- was rejected
- after rejection, job position remained open, or was filled by someone not of that class
16
Q
what are the 4 things to establish a prima facie case in the event of termination/adverse action?
A
- was member of protected class
- satisfied employer’s reasonable expectations
- demoted/failed to promote/terminated/other adverse action
- comparator evidence or replaced by someone not in that class
17
Q
who bears the burden in a McDonnell Douglas analysis?
A
the plaintiff always has the burden of persuasion. in presenting a legitimate reason for the adverse action, the employer has the burden of production
18
Q
what kinds of claims is mixed motive applied for?
A
title 7 claims of basic discrimination
19
Q
what kinds of claims is but-for causation required?
A
ADEA, or any claims of retaliation
20
Q
what is the defence for a disparate treatment claim?
A
BFOQ - Bona Fide Occupational Quality.
21
Q
what classes does BFOQ apply to? which does it not apply to?
A
applies to religion, sex, national origin - also applies under the ADEA for age
does not apply to race or color
22
Q
what 3 things must an employer show to have a BFOQ defence?
A
- that excluding the class in question is reasonably necessary to the essence of the buisnsess
- must establish that all or substantially all excluded individuals are in fact disqualified and it would be impossible/highly impractical to deal with each affected employee individually
- if the employer’s objective is public safety, the employer must show that this challenged practise does in face effectualte the goal of safty
23
Q
what happens if the ultimate decision maker is not based on a discriminatory animus?
A
catspaw situation. the employer can be liable if the decision maker was operating on the recommendations of a supervisor who did have a discriminatory bias
24
Q
what is the title 7 proof structure for disparate impact?
A
- complainaint deomostrats that themployer has a particular policy and that policy causes a disparate impact on the basis of race, color, relation, national origin, or sex
- burden shifts to employer to show that the policy in question exists in relation to a business necessity - must be tailored to the job in question
25
if for a disparate impact claim, the employer asserts a business necessity defence. can the employee prevail?
Yes, if a less discriminatory policy was proposed by the employee and rejected by the employer. this alternative method must be similar in cost to the employer and similarly effective
26
does buissness necessity defence work against a claim of intentional discrimination?
no
27
what is the ADEA proof structure for disparate impact?
1. plaintiff must prove that a specific practise creates a disparate impact based on a protected trait - age
2. burden shifts to employer to show that this practise/policy is based on a reasonable factor other than age
28
what is the 80% rule?
for disparate impact in hiring rates. if less than 80% of a protected class is hired (of the amount of people who apply) will be treated as evidence of a disparate impact in hiring practises
29
give a numerical example of the 80% rule in hiring
60 men, and 40 women apply to the same position. 40 men, and 10 women are ultimately hired:
men - 40/60 = 67% of men who applied were hired
women - 10/40 = 25% of women who applied were hired
because the percentage of women hired is so far below 80% this satisfies the 80% rule
30
what do you need when claiming disparate impact on a nationwide scale?
statistics and evidence of actual discrimination
31
what are the 2 types of harassment?
quid pro quo, hostile work environment
32
what are the elements of quid pro quo?
o a supervisor requested sexual favors;
the subordinate employee rejected that request;
o the supervisor took adverse action against the subordinate; and
o the subordinate’s rejection of the request caused/motivated the adverse action.
33
what is the liability for quid pro quo?
employer is automatically liable
34
what are the elements of a hostile work environment?
1. person was in protected class
2. received treatment that made them feel as though it was an abusive enviroment
3. a reasonable employee would also find it to be an abusive environment
4. the conduct was either severe or pervasive
35
when will an employer be vicariously liable for harassment?
if a supervisor initiated a tangible employment action, then the employer is vicariously liable
if the supervisor did not initiate a tangible employment action, then vicarious liability only if the affirmative defence fails
36
what is the employer affirmative defence for harassment?
employer must show that:
1. they had sufficient anti-harassment policies, and
2. the employee unreasonably failed to take full advantage of corrective opportunities the employer made
37
what are the elements of a retaliation claim?
1. employee engaging in a protected activity
2. a materially adverse employment action was inflicted upon the employee
3. there is a casual link between the materially adverse employment action and the employee engaging in the protected activity
38
what is participation?
formally filing or participating in an EEOC charge
39
what is opposition?
less formal than participating, resisting an employers illeigal/discrimiatory conduct can include answering EEOC questins
40
what is a materially adverse action?
any conduct that would dissuade a reasonable employee from filling or supporting an EEOC claim
41
what establishes that the employer's materially adverse action was "because of protected activity"?
but for causation - can be established either by direct evidence or temporal proximity
42
employer punishes employee because they were answering questions about another employees claim. is this retaliation?
yes
43
what is the definition of a religion?
a sincere belief that occupies a parallel to God in traditional religions
44
what are the kinds of religious discrimination claims?
either basic discrimination, or a failure to accomodate
45
what is the definition of an undue hardship?
when a burden is substantial in the overall context of an employer’s buissness. This is shown though an accmodation on the employer’s part being exsessive or unjustifiable. It would result in substanatial increased costs in relation to the conduct of its particulat buissiness.
46
what is the religious employer exemption?
so long as an entity's nature is that of a religious one, they are allowed to discriminate on religious grounds for all positions
47
what is the ministerial exception?
so long as an employer is deleting a minister/preist, they are allowed any kind if discrimination
48
what are the kinds of disability discrimation claims?
plain discrimaition of failure to reasonably accomodate
49
what must one be to receive ADA protections?
a qualified individual with a disability
50
what is a qualified individual?
a person who, with or without accommodation can perform all essential functions of a job
51
what is a disability?
1. an actual disability
2. record of disability
3. regarded as disabled - regarded by the employer
52
what is the definition of disability?
an impairment that significantly affects a life activity
53
how to tell what an essential job function is?
1. job descripction
2. reasonable employer judgement
3. amount of time spent on the job doing that function
4. if removing that function would significantly alter the job
5. work experience of others doing similar jobs
54
what must an employee do to have a prima facie case for ADA discrimination?
explicitly articulate that they have a disability and require accommodation - do not need to use statutory language
55
what is a direct threat?
it is an affirmative defence to ADA discrimination. employer can show that it can discriminate against an employee because accommodating themwith their disability would pose a direct threat to themselves or coworkers.
56
what will courts consider for a direct threat?
courts will consider:
1. duration of risk
2. imminence of risk
3. nature an severity of portnetial harm
4. likelihood that harm will occur
57
what does sex discrimination include?
steorypes, pregnancy and related conditions, gender, and sexual orientation
58
what is the question when grooming policies are challenged?
if one sex is substantially more burdened than the other
59
does a braided hairstyle ban constitute racial discretion?
no, because it is not a truly immutable trait
60
when will grooming policies on hairstyle or looks treat into discrimination?
when they enter the realm of racial stereotypes
61
what does color discrimination refer to?
a person's literal skin tone
62
what does national origin discrimination encompass?
broad - foreign birth, origin ancestry, or a characteristic associated with a person's national origin
63
when is discriminating against a person's accent discrimination and what class is it?
national origin. when it is discriminated against on the basis that its s not an essential job function. ex. to require air traffic controllers to speak clear English would be an essential job function. for a tailor to speak clear English would not be.
64
when are English only policies ok?
when they only mandate that English must be spoken while the employee is on duty
65
what are the 6 steps of an EEOC filing? give timelines
1. complainant files a complaint - must be done 180/300 days after having received notice of the adverse employment decision
2. EEOC gives the employer notice -10 days after reaching compliant. asks them for their version of events and what harmed them
3. EEOC investigates
4. EEOC reaches a determination
5. EEOC issues a right to sue letter - no less than 180 days after reaching complaint
6. planitff files suit - no less than 90 days after receiving right to sue letter
66
where are the places that will have jurisdiction to hear a discrimination claim?
1. where the employee would have worked had the decision not been made
2. where records of the decision are kept
3. where the employer resides
67
what are the 2 differences between procedure for ADEA and other claims?
ADEA doesn't require a right to sue letter. planitff can sue between 60 days after filing complaint up to 90 days after reaching a right to sue letter
