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EMPLOYMENT DISCRIMINATION

SUMMER 2018

Disparate Treatment………………………………………………….….2

Mixed­Motive……………………………………………………… 4

Systemic DT…………………………………………………………. 6

Disparate Impact……………………………………………………. 7

Retaliation……………………………………………………..……….9

Harassment Because of Sex…………………………………………. 11

Harassment Employer Liability………………………………………..12

Harassment Because of Race…………………………………………..13

Sex Discrimination……………………………………………………..14

Pregnancy and Family Responsibilities………………………………..15

Sexual Orientation……………………………………………………..17

Religion………………………………………………………………...18

National Origin………………………………………………………...20

Age Discrimination………………………………………………. 21

Disability Discrimination…………………………………………. 23

Adjudicating/Remedying Discrimination…………………………. 26
I. FRAMEWORKS FOR UNDERSTANDING
EMPLOYMENT DISCRIMINATION

I. DISPARATE TREATMENT
DISPARATE TREATMENT (DT) – viewed through 3 factual and analytical lenses.
1. Single motive or pretext cases
2. Mixed
3. Pattern or practice cases.
 Requires proof of intent (employer had intent to treat differently a particular member of
a protected class)
 Majority of cases analyzed under McDonnel Douglas analysis.
 How to prove intent?
o Direct evidence (not available in most cases)
o Circumstantial evidence (apply McDonnell Douglas analysis ---> if pretext
argument doesn’t work, apply mixed motive analysis).
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1. FOUNDATIONS

McDonnell Douglas Analysis:


1. Employee makes a Prima Facie case (minimal showing is good enough)
a. Hired Prima Facie
i. Was a member of a protected class
ii. Was qualified for a job
iii. Adverse employment action
iv. Inference of unlawful discrimination
b. Non-hiring Prime Facie
i. Was a member of a protected class
ii. Was qualified for a job
iii. Rejected for position
iv. Position remained available
2. Employer offers legitimate nondiscriminatory reason (LNDR) for the challenged
action. (Burden of Production)
3. Employee rebuts employer’s reasons, showing that they are pretextual, while the true
reason is discrimination (Burden of persuasion – more likely than not)

*The same framework applies to promotions, demotions, discharges (includes constructive


discharges).

Constructive Discharge: when employee involuntarily resigns in order to escape intolerable


working conditions that she is subjected to because of her race, sex, national origin, or religion.
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Constructive discharge may also arise when employee resigns in lieu of being fired.
 Employee must show that:
1. The working conditions became so intolerable that a reasonable person in
employee’s position would have felt compelled to resign; and
2. A deliberate effort by employer to force employee to quit (some courts don’t
require proof of employer’s intent to force employee to resign).
1. Evidence P can Offer:
1. Comparator evidence (how similarly situated employees were treated
by employer
2. Treatment of the same employee before being discharged (showing
hostile work environment, comments by decision makers showing bias
to protected group)
o Distinguish between “stray remarks” and “probative
remarks”
 Stray remarks are not evidence of discriminatory
animus (typically, they seem to attenuated to be
connected to the animus)
3. Statistics on hiring/discharge/re-hiring (this evidence can bolster the DT
case, but it’s much more crucial in DI cases)
4. “Me too” evidence (showing that other workers in protected class were
also treated badly)
5. General policy and practices in relation to protected group
(hiring/promotion/transfer/etc.)

Honest Belief Rule:


 If employer honestly believes that employment decision was correct one at the time, he
may be entitled to defense against finding of pretext, but this honest belief must be
reasonable.
CASES:
 McDonnell Douglas v. Green
 St Mary’s Honor Center v Hicks
 Reeves v. Sanderson

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2. MIXED-MOTIVE

Mixed Motive Analysis:


 Applies to disparate treatment (DT) cases under Title VII.
 Applies to cases where both legitimate and illegitimate reasons played a role in
employer’s adverse action.
Cat’s Paw Theory:
 Refers to a situation in which a biased subordinate, who lacks decision-making power,
uses the formal decision maker to trigger a discriminatory employment action.
o Essentially when the decision is a product of multiple decision makers.
 Rubber Stamp – “refers to situation in which a decision maker gives perfunctory
approval for an adverse employment action explicitly recommended by a biased
subordinate.”
 This theory comports with basic agency principles incorporated into Title VII (“any
agent” of the business).
o Under certain circumstances, D may be held liable for a subordinate’s prejudice
even if the manager lacked discriminatory intent.

*Employer (final decision maker) can escape liability entirely by performing independent
investigation (before making adverse employment action)
*Employers may be vicariously liable for actions of their employees – even intentional torts
outside scope of employment if the employee was “aided in accomplishing the tort by existence
of the agency relationship.”
*if you are in HR – you don’t want HR departments rubber stamping recommendations without
any independent investigation. So a good policy to have is to have the person actually hiring or
firing do an independent investigation.

 Overall: the burden is on the employer to look more closely and conduct an independent
evaluation before making the employment decision.

Circuits on This Issue:


 7th Circuit Standard: issue is whether biased subordinate’s discrimination reports,
recommends, or other actions caused by the adverse employment action (more than
“mere influence” or “input”)
 5th Circuit Standard: any influence, the reporting of any factual information, or any form
of other input by a biased subordinate renders employer liable so long as the subordinate
“may have affected: the employment decision.
 4th Circuit Standard: employer cannot be held liable even if biased subordinate exercises
“substantial influence” or plays a “significant role” in the employment decision.

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How to analyze this problem:
1. Prima Facie Case – burden of proof
a. Unlawful motivating factor – more than 50%
2. Defendant – burden of proof
a. Same decision test – would have made the same decision regardless
CASES:
 Price Waterhouse v. Hopkins
 Desert Palace v. Costa
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3. SYSTEMIC DISPARATE TREATMENT

What is this?
 Subset of DT cases.
 Focuses on statistical disparities in the work force (in a particular job classification)
 Anecdotal testimony and statistical evidence.
Standard Devision (SD) – benchmark is 2 SD
 Rule is if a disparity is greater than 2 SD from what would be predicted, the law will infer
discrimination as the most likely cause of disparity:
 First sanctioned in Hazelwood.
o Courts say that when results are greater than two SDs, they will draw an inference
of discrimination.
Lack of Interest Defense
 Employer may successfully argue that disparity is due to lack of interest by the protected
groups (see EEOC v. Sears).
*Have to prove that the policy is what is causing the discrimination. Bigger the disparity,
the stronger the inference of discrimination.

CASES:
 Teamsters v. United States
 Hazelwood School District v. United States
 Wal-Mart Stores v. Dukes
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4. DISPARATE IMPACT

 It challenges a facially neutral policy that falls more harshly on a protected group and
cannot be justified by a business necessity.
 Need to have some specific policy that has “adverse impact, disparate effect” on a
protected group, resulting in “unintentional discrimination.”
o The focus is on bad consequence, not on bad intent.
 Prima Facie (after Watson & Ward’s Cove):
1. Statistical disparity (80% rule)
2. Identify specific employment practice that allegedly caused disparity.
 Defendant:
3. Tite VII – burden of proof
• Rebut the showing of the impact
• Prove the practice is job-related and consistent with business necessity
• Professionally developed test
• Bona fide seniority system
• Bona fide merit and piecework system
4. ADEA
• Reasonable factor other than age
 If P wins ---> there are no damages available (only back pay)

*Class actions are frequently linked to both systemic DT and DI claims.

4/5 Rule (80% rule)


 Employee may establish adverse impact by showing that the employees in the protected
class are hired, or pass a test, at a rate that is below 80% of the rate of the most successful
group.
Test Validation:
 Criterion – collect data – develop correlation between tasks and what makes employee
successful
 Construct-related – abstract – teamwork, innovation, etc.
 *Content-related – easiest. Measure something directly - WPM

*Subjective employment practices could be challenged under the DI theory. Few subjective
practices have actually been challenged under the theory because subjective practices can also
generally be challenged under a DT theory and after the CRA of 1991, Ps have an incentive to
bring cases under the DT rather than DI theory given that damages are available for DT cases
but not for DI cases.

*Burden of Proof in DI cases – after the employee makes a prima facie showing of DI, full
burden of production and persuasion shifts to employer to prove business necessity – overrules
one holding of Ward’s Cove.

CASES:
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 Griggs v. Duke Power Co.
 Connecticut v. Teal
 Watson v. Fort Worth Bank & Trust
 Wards Cove Packaging Co. v. Atonio
 Ricci v. DeStefano

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II. RETALIATION
Retaliation Statutory Text: (SEC. 2000e-3. [Section 704]
• Discrimination for making charges, testifying, assisting, or participating in
enforcement proceedings
• It shall be an unlawful employment practice for an employer to discriminate against any
of his employees or applicants for employment, for an employment agency, or joint
labor-management committee controlling apprenticeship or other training or retraining,
including on—the-job training programs, to discriminate against any individual, or for a
labor organization to discriminate against any member thereof or applicant for
membership, because he has opposed any practice made an unlawful employment
practice by this subchapter, or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this
subchapter.

Retaliation in General:
 A form of DT that permeates almost every discrimination claim.

Prima Facie Case of Retaliation:


1. Employee engaged in protected activity.
2. Employee suffered a materially adverse employment action.
3. Causal link between adverse employment action and the protected activity
4. Employer knew about employee’s engagement in the protected activity.

Framework (similar to McDonnell Douglas):


1. Employee established Prime Facie showing.
2. Employer shows another, legitimate cause for an adverse employment action.
3. Employee has to prove pretext and real reason was discirmination.

Who is Protected?
 Former employee’s, third parties (Thompson v. North Am. Stainless)

2 Types of Protected Activity


1. Participation
a. This clause under §704(a) has been construed broadly by the courts and includes
filing with EEOC or participating in Title VII investigation, proceeding, or
hearing.
b. Is not dependent on the strength of the underlying case

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2. Opposition: (opposing a discriminatory action) (complaint, public protest, etc. –
protection more limited)
a. Manner of opposing must be reasonable; it cannot interfere or disrupt the work of
other people.
b. Must have reasonable good faith belief that employment practice is unlawful.

Participation/Opposition Note:
Two kinds of activities are protected under the anti-retaliation provision of Title VII. The
participation clause prohibits retaliation because an individual “has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing” to enforce
laws prohibiting discrimination in employment. Title VII, §704(a). The opposition clause, on the
other hand, prohibits retaliation because an employee or applicant “has opposed any practice
made an unlawful employment practice” 42 U.S.C. § 2000e-(3)(a)

*Employee does not have to prove he was discriminated against when he filed with EEOC
(engaged in the protected activity) ---> protection is assured regardless of the underlying merits
of the claim.

Causation:
 Clark County School District v. Breeden – two years will never make PFC causal link too
attenuated.
 Conclusion: How to make out a case:
o Knowledge of internal/external complaint
o Temporal proximity (has to be pretty close)
o Other employees have been retaliated against (a pattern)
o Attack the legitimate non-discriminatory reason. (Page 193)

CASES:
 Burlington Northern Santa Fe Railway v. White
 University of Texas Southwestern Medical Center v. Nassar
 Clark County School District v. Breeden

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III. HARASSMENT
Harassment:
 Employee is not proving pretext, but what actually happened (facts).
 It’s not a separate statute but an interpretation of DT statute.
1) Did something happen at work that made it substantially more difficult for the
employee to perform at work?
2) Was it because employee is a member of a protected category?
3) Is employer liable for what happened?
 General harassment is not a crime under federal and state laws. To make harassment
legally actionable, it must be traced back to a protected category.

1. Harassment Because of Sex (2 categories):


1)Quid Pro Quo:
a.Explicit situation, where sexual compliance is exchanged for an
employment opportunity
b.If done by supervisor there may be vicarious liability for the employer.
2)Hostile Work Environment (HWE):
a. Severe or pervasive
b. Unwelcome
c. Offensive and abusive
d. Vicarious liability
e. Because of sex
f. Agency principles apply (see Meritor).

Change in terms or conditions of employment can be established by:


1) A tangible economic loss (being fired, not promoted, etc.)
2) If there’s no tangible economic loss, the conduct must be sufficiently severe or
pervasive (may include emotional and psychological instability but injury doesn’t
have to be at the level of nervous breakdown).

What conduct is “sufficiently severe or pervasive”?:


 Physical contact/touching (1 instance can be enough)
 Remarks/verbal (no touching) – if there’s an expectation of several instances to show a
pattern of conduct (though, it’s not clear how many would be enough).
 Pervasive is a high standard.

What conduct is “unwelcome”?: some court spend a lot of attention on the P’s behavior
 US SC did not define it in precise terms: this term opened the door to employer’s trying
to show that the challenged conduct was “welcome,” which puts employee in uneasy
place (to prove it was “unwelcome”)
 When is P’s behavior subject to critique? Meritor – said “provocative speech and dress is
not irrelevant as a matter of law.”

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 Court generally looks at this in the totality of the circumstances
o Did she think it would get worse if she didn’t go along with it? What if she was
just silent?

Defenses:
1) Denial (this never happened)
2) Attack on the evidence of “unwelcomeness” (seeking discovery on employee’s prior
sexual behavior to show that employee showed that she either welcomed the alleged
sexually harassing conduct or was not subjectively offended by the conduct).
3) The conduct wasn’t work-related (employer not responsible for some other employee’s
non-work activity).
4) It wasn’t severe or pervasive.
5) WE can’t be held responsible for these unauthorized acts of our employees.

*Next problem to face is when the employer should be liable. Individual supervisors are
generally not liable under Title VII (although you can under some common law theories and a
number of state law claims).

How to differentiate between just comments/jokes from sexual harassment?


Court in Harris suggests looking at frequency, severity, whether there was “heavy
pollution” of work environment with discrimination/ it permeated the whole
environment, making it “hostile and abusive” (no single factor is required – it’s a totality
of circumstances approach).

CASES:
 Meritor Savings Bank, FSB v. Vinson
 Harris v. Forklift Systems
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2. Employer Liability
1) If it is a tangible employment action by supervisor – employer is liable (strict liability)
2) If no tangible employment action – employer has an affirmative defense that employer
acted reasonable and employee acted unreasonable

Who is a supervisor?
 If it’s a co-worker – the standard is simple negligence – employer knew or should have
known that the harassing behavior was taking place and didn’t do anything. In that
situation the burden is on the employee. If the employer is raising it as an affirmative
defense then the burden is on the employer.
o Supervisor is someone who can recommend or undertake tangible employment
action. Also someone who can direct your daily work. Someone who is in a
position that enhances his or her ability to engage in harassment. Someone who
one would be reticent to object directly to, unlike a co-worker.
o However, note that in cases like Harris – where the harasser is the president – the
actions may be seen as being the same with the actions of the company.
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*Second prong – failure to use the employer’s complaint procedure
 Failure to use the employer’s complaint procedure – this will normally suffice to satisfy
the employer’s burden under the second element of the defense.”
 Failure to take advantage of the corrective opportunities provided by the employer

CASES:
 Burlington Industries v. Ellerth
 Vance v. Ball State University

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3. Harassment Because of Race


 Same-race harassment is actionable after Oncale decision.
o Also Oncale held that severity or pervasiveness of a HWE is evaluated in light of
the totality of the circumstances. (Page 595)
 Appropriate standard to be applied in a HWE racial harassment claim is that of a
“reasonable black person” (Page 592).
*Tangible employment action = significant change in employment status such as hiring, firing,
failing to promote, reassignment with significantly different responsibilities, changes in benefits.

CASES:
 Harris v. International Paper Co.

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II. SPECIFIC CATEGORIES OF
DISCRIMINATION

IV. SEX DISCRIMINATION


 Disparate treatment case framework – McDonell Douglas
 Employer may not take gender into account in making an employment decision (except
the narrow circumstances in which gender is a BFOQ)
 Sex stereotyping is not permitted as basis for employment decisions. Remarks at work
that are based on sex stereotypes do not inevitably prove that gender played a part in a
particular employment decision.
o These remarks can offer evidence; but P ultimately must show that employer
relied on her gender when making its decision

How Employee can show discrimination because of sex?


1.Direct comparative evidence (how the harasser treated members of both sexes)
2.Explicit or implicit proposals of sexual activity.
3.Hostility toward that person’s sex
4.Evidence of sex stereotyping (e.g. a man has to be very masculine; if he’s not, he may be
harassed)

*Classic BFOQ case that has yet to be resolved is Hooters – hiring only women waitstaff. They
are offering “vicarious sexual recreation”.

*Remember BOFQ does not apply to race. What about national origin? We’ll talk about this
later.

Pregnancy Discrimination Act

BFOQ (The Bona Fide Occupational Qualification Defense) -§703(e)(1) of Title VII
 applies to facially discriminatory policy; it’s more stringent standard
 It’s not unlawful to hire and employ employees on the basis of religion, sex, or national
origin in those certain instances where religion, sex, or national origin is a BFOQ
reasonably necessary to the normal operation of that particular business or enterprise.
 Note that race cannot be a BFOQ
 BFOQ has a very narrow reading
 “Occupational” means objective, verifiable requirements that must concern job-related
skills and aptitudes (qualifications that affect an Ee’s ability to do the job)
 Discrimination under the safety exception to the BFOQ is allowed only where a job
qualification must relate to the “essence” or to the “central mission of the Er’s business”
(see Johnson Controls)
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 In general, customer preference is not enough to claim BFOQ exception
 Privacy-based BFOQ – a petition signed by 10,000 customers, who said they would not
come to the health club if male trainers worked there was good enough (this case settled).

*For facially neutral employment policies, need to apply “business necessity” defense (less
stringent standard)
*An example of successful safety based BFOQ is Dothard v. Rawlinson, where Ct allowed Er to
hire only male guards in contact areas of maximum-security male penitentiaries. Sex was a
BFOQ b/c the employment of a female guard would create real risks of safety to others if
violence broke out b/c the guard was a woman (the concern for woman’s own safety would not
justify BFOQ use).

CASES:
 Price Waterhouse v. Hopkins
 ONCALE v. Sundowner Offshore Services, Inc.
 International Union, United Automobile Workers v. Johnson Controls
 Southwest Airlines Case
 Jesperson

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V. PREGNANCY AND FAMILY RESPONSIBILITIES
(a) PDA (Pregnancy Discrimination Act)
- Congress passed it to overrule General Electric Co v. Gilbert (where strangely enough, S.
Ct. said that discrimination against pregnant persons isn’t sex discrimination b/c not all
women are pregnant)
- It’s an equality statute, not accommodation statute. Er does not have to accommodate for
pregnancy.
- Normal pregnancy ≠ disability under ADA
- Complicated pregnancy – may be.

Lifting Boxes Hypo: pregnant Ee asks to be transferred to another job b/c she cannot lift heavy
boxes – Er refuses to transfer (Ee has to quit as a result). How to prove the case under PDA?
- show adverse employment action (constructive discharge)
- show that Er knew Ee is pregnant
- show comparator evidence (another Ee with similar “disability,” who asked to be transferred to
another job and Er did it).

Pregnancy and the Interplay b/w Title VII (PDA), FMLA, and ADA (p. 449):
FMLA: Er must provide unpaid leave for Ee’s with serious medical conditions
PDA: requires Er to treat pregnant Ee’s the same as other Ee’s
ADA: requires Er to make reasonable accommodations for Ee’s with disabilities who are
otherwise qualified for the job

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Pregnancy under ADA:
 EEOC regulations interpreting the ADA state that “conditions, such as pregnancy, that are
not the result of physiological disorder are not impairments.” Pregnancy can be viewed as
a physiological condition, but it is not a disorder or impairment. Based on these
regulations, many courts denied ADA claims of pregnant workers. Other courts applied
more nuanced analysis, finding that EEOC regulation does not explicitly exclude
“pregnancy-related impairments, provided they are the result of a physiological disorder.”

CASES:
 Young v. UPS
 Maldonado v. US Bank

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VI. SEXUAL ORIENTATION
 There is no federal law that prohibits employment discrimination because of gender
identity or sexual orientation. However, some states passed state laws that have gender
identity discrimination statutes.
 Some courts used Price Waterhouse’s prohibition against “sex based stereotyping” to
rule for P’s in cases where it’s clear that the reason P was discriminated against was
actually P’s sexual orientation.
o Other courts rejected this approach and refused to “boot­strap” sexual orientation
into Title VII protections.
 Courts adopted 3 approaches to discrimination because of sexual orientation:
1. Anti-bootstrap stance (sex orientation is not protected by Title VII)
2. Smith approach (Title VII protects people from sex stereotyping regardless of
their gender identity or sexual orientation – using Price Waterhouse argument)
3. Billington approach (it is sex discrimination per se)
 P’s may also true sue using EPC challenge under 14th Amendment (if State is employer)
or state laws.

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VII. RELIGION
Title VII, §701(j), 42 U.S.C. §2000e(j)
 The duty not to discriminate on religious grounds includes an obligation on the part
of Er to make reasonable accommodations to the religious needs of Ee’s where such
accommodations can be made w/o undue hardship on the conduct of the Er’s
business.
 Religion includes all aspects of religious observance and practice, as well as belief

Religious practice/ observance:


 Cannot be a matter of personal choice; it must be a conviction shared by a group,
related to activities/ group culture (but it doesn’t have to be written in the book)
 Moral/ ethical viewpoints may qualify under EEOC regulations; but courts are
more hesitant about it
 Can be antireligious (atheism is OK)
 It doesn’t have to be organized religion but must be more than personal belief
 Courts will not question religious beliefs (e.g., saying “Islam does not require to wear
headscarves”) but will question sincerity of Ee in believing. This could be a good
defense for Er. (can question sincerity but not veracity of religious belief)

Prima Facie and analysis:


1. Ee established Prima Facie
- Ee had a bona fide religious belief that conflicted with an employment
requirement
- Ee informed Er of this belief
- Ee was disciplined for failing to comply with the conflicting
requirement of employm.
2. Er shows that reasonable efforts were made to accommodate Ee or it was undue
hardship to accommodate (need to be business-related hardship)
- anything above de minimis is likely satisfy “undue hardship (very low standard)
3. Ee disproves this as pretext

How is it different – involves a degree of choice (not immutable), requires reasonable


accommodation.
 What is a religion? Sincerely held belief
 What you are looking for is something that addresses the same moral and
ethical concerns that organized religion does.

Ministerial exemption – goes beyond Religious Entity Exemption – in the hiring and firing
of clergy, or other church employer who have a religious mission.

The religious entity exemptions:


Title VII provides two broad exemptions for religious employer
§702(a)
 Title VII shall not apply to a religious corporation, association, educational
institution, or society with respect to the employment of individuals of a particular
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religion to perform work connected with the carrying on by such corporation,
association, educ. institution, or society of its activities.

§703(e)(2)
 It shall not be an unlawful empl. practice for a school, college, university, or other
educ. institution [in whole or in substantial part, owned, supported, controlled, or
managed by a particular religion] to hire and employ employees of a particular
religion

CASES:
 EEOC v. Abercrombie & Fitch Stores, Inc.
 Wilson v. US West Communications
 Hosanna-Tabor Evangelical Lutheran Church v. EEOC

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VIII. NATIONAL ORIGIN
 Theories, defenses, and analyses of DT and DI cases apply for national origin
 Employer that requires its Employee’s to be able to speak English well as a
condition of employment may face a claim of discrimination based on national
origin. If the requirement is applied to a non-English speaking Employee as
opposed to a bilingual Employee, most courts suggest using DI model b/c the
requirement will have a disparate impact based on national origin.
 “English-only” policy across the board is impossible to justify (under EEOC
regulations, such policy is enough to establish a prima facie case of disparate
impact).

*Discrimination based on citizenship is OK so long as it is not a pretext for discrimination


based on national origin (applied equally).

CASES:
 Chamber of Commerce v. Whiting

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IX. AGE DISCIRMINATION
 The person replacing you doesn’t have to be younger than 40 – but the disparity
probably has to be around 10 years or more to create the “inference of
discrimination”
 If you can prove that the violation was willful, you can get up to an additional
50K in liquidated damages.
 What’s different about age discrimination. It is something that applies across the
board. What about age is different? In general – judges and the legislature say that
age is not necessarily unrelated ot job performance.
 It’s separate (from Title VII) statute that was passed in 1967.
 Protected group is employee’s 40 years or older.
 Statutory minimum 20 employees
 Both DT and DI theories can be used, but most cases are brought under DT theory.
 Supreme Court hasn’t decided whether McDonnell Douglas framework applies to
ADEA
 Under McDonnell Douglas (if no direct evidence of age discrimination):
1. Employee established prima facie.
2. Employer responds with reasonable factor other than age (burden of
production)
3. Employee has the burden of proof to show pretext and that age was the
true reason for the action.
Prima Facia for ADEA claims:
 Employee is member of protected class and was qualified for the job.
 Employee was subject to an adverse employment action.
 Under circumstances that raise an inference of age discrimination (typically,
replaced by younger worker)
o courts say the replacement does not have to be under 40, but use the
standard of “substantially younger” (Courts vary – 10-year difference was
found to be “substantial,” 5-yrs – not enough).

- Mixed motive analysis is not applicable (age must be “but-for” cause) – see Gross case
There is no accommodation requirement for older people under the ADEA. EX: if a test is
job related, reasonable, and older workers fail it, the ADEA won’t be able to protect them.

Customer preference (e.g. for younger people) – no

Proxy for age discrimination:


 perceived as less productive and/or less creative
 perceived as having limited skills and/or ability to acquire skills
 perceived as no longer fitting into the organization

*Under the ADEA, it shall not be unlawful for an employer to take any
action otherwise prohibited… where the differentiation is based on
reasonable factors other than age. RFOA is a lower standard than
business necessity – Er just needs to show that the action was reasonable.
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CASES:
 Hazen Paper v. Biggins
 Gross v. FBL Financial Services
 Smith v. City of Jackson, Mississippi
 Meacham v. Knolls Atomic Power Laboratory

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X. DISABILITY DISCRIMINATION
 Americans with Disabilities Act (ADA) prohibits discrimination against
qualified individuals with a disability
a. Structure is identical to Title VII – same enforcement, exhaustion
of administrative remedies requirement, same number of
employees, same remedies available
b. Private employers with 15 or more employees
 Threshold issue of who should be covered under ADA – unlike other
types of discrimination
a. ADA also requires accommodation (only seen in religion)
b. Reasonable accommodation language of ADA is different from
religion because there is no de minimis cost language in ADA like
religion
 Prima facie case
a. Disability within the meaning of the ADA
b. Qualified individual
c. Suffered an adverse employment action as a result of the disability
 Definition with ADA
a. Qualified individual with a disability is an individual with a disability
who, with or without reasonable accommodation, can perform the
essential functions of the employment position that such individual
holds or desires
b. Disability is defined as:
i. A physical or mental impairment that substantially limits one or
more major life activities of such individual;
 “Substantially limits” means unable to perform a major
life activity that the average person in the general
population can perform
ii. A record of such an impairment (history of disability); OR
iii. Being regarded as having such an impairment
c. Section 511 excludes the following from “disability” –
homosexuality, bisexuality, transvestism, transexualism,
pedophilia, exhibitionism, voyeurism, gender identity
disorders not resulting from physical impairments, other
sexual disorders, compulsive gambling, kleptomania,
pyromania, and psychoactive substance use disorder resulting
from the illegal use of drugs
iv. Would alcoholism be covered?
 Recovered drug addicts are covered if they are
participating in a program of rehab
v. .HIV infection is a disability – held by Sup Ct in Bragdon v. Abbot,
1998
d. Accommodation – Section 102(a) – no covered entity should
discriminate against qualified individual with a disability
vi. Employer must make reasonable accommodations for disabled employees
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ADA Amendments of 2008
a. Now disability has to be considered without regard to the mitigating measures
vii. These measures should not be considered when determining whether a
major life activity is substantially impaired
 Except for ordinary glasses or contact lenses that fully correct
the impairment – they will be considered in this evaluation
viii. Purpose is to eliminate discrimination that may arise based on
appearance created by a corrective measure
b. “Regarded as” language now includes perception (not just actual ability anymore)
ix. Congress returns the statute to a discrimination meaning
c. Expands definition of “major life activities” to include broad list of major
bodily functions – would cover disabilities that are episodic or in remission
x. Taken from EEOC regulations – but not limited to list
d. “Substantial” doesn’t mean severely restricts
xi. ts burden on employer to make reasonable accommodations for
individuals who can demonstrate impairment that substantially limits a
major life activity
 As long as the accommodations don’t place an undue burden
on the employer

What is a reasonable accommodation?


a. The accommodation process is an interactive process between
the employee/employer
 Burden is on employee to show it’s a reasonable accommodation
 Burden is on employer to show it’s an undue hardship
b. Is it reasonable to require an employee to use up sick time to deal with the
manifestation of their disability b/c working from home was too burdensome
for employer?
 Rarely a reasonable accommodation to allow a worker to work
from home without supervision
xii. Example – employee wanted employer to create an accessible sink in
the kitchen. Employer had an accessible sink in the bathroom so didn’t
want to pay $150 to get sink in kitchen as well
 Court said this reasonable, employer didn’t want to get sink in
kitchen as well
 Courts look to following factors when evaluating an accommodation
a. Nature and cost of accommodation
b. Efficacy of accommodation; will it really benefit
the employee?
c. Cost can’t be disproportionate to the benefit
d. Overall financial resources of the company
 Example – employee comes to work late everyday and is let go as
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a result. Employee claims he has agoraphobia and has to wait
until later to take subway to work
a. Employer must know about the disability and impairments
b. If an employee has agoraphobia and employer doesn’t
know, can’t expect an accommodation
c. Employee mentions to employer that he gets anxious
on subway – probably still not enough b/c no proof
that it’s a medical or psychiatric issue
 Employer has a duty to engage in some conversation but also
can’t insinuate disability where one does not exist
a. One way for employer to avoid liability under ADA
is to clearly define the essential functions of the job
b. For instance, job requires lifting of 50lbs, if employee
hurts back and can’t lift that much then he can’t
perform the essential functions of the job
i. Proper accommodation could be job
restructuring – switch certain duties
ii. If this isn’t possible, then there isn’t a reasonable
accommodation and employee can’t perform
essential functions of job with or without a
reasonable accommodation. Won’t have claim
under ADA
CASES:
 Huber v. Wal-Mart Stores
 Sutton v. United Airlines
 Toyota v. Williams
 Vande Zande v. Wisconsin

**************************************************
**

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III. ADJUDICATING AND
REMEDYING DISCRIMINATION
Enforcement Schemes:
 §1981 of Civil Rights Act of 1866
◦ passed to prevent race discrimination in employment as it was in 1866 – a
combination or national origin and religion – e.g. Jewish race, Scandinavian
race
 Adjudication/Remedies
◦ No administrative enforcement scheme of employment discrimination
claims based on §1981 or the Constitution so don’t need to exhaust
administrative remedies
◦ SOL is 4 years, as opposed to the limited SOL for Title VII
◦ No cap on back pay
◦ No financial cap on compensatory or punitive damages
◦ Often parties will join a §1981 claim with a Title VII claim in order to
circumvent the SOL and remedies limitations`

Procedure for Title VII, ADA, and ADEA:


1. Jurisdiction
◦ Employer needs to employer 15 or more employees to be subject to federal
anti- discrimination laws (ADEA requires 20 or more)
◦ NY only requires 4 or more employees to be subject to state anti-
discrimination laws
◦ Must exhaust administrative remedies before taking claim to federal courts
(also for GINA)
2. Timely Filing Procedures
◦ Charge must be filed with EEOC or with state or local agency that has
formal relationship with the EEOC
◦ If there is a state/local agency then must file with 180 days of
employment discrimination
◦ If no state/local agency then have 300 days to file with EEOC
◦ If charge is filed with state/local agency, can file with EEOC within 300 days
but EEOC will defer until decision is received from state/local agency
◦ If charge is first filed with EEOC, they will wait for 60 days to see if
state/local charge will be filed
3. Adjudication – EEOC doesn’t hold any adjudicative hearings (except for
federal employees)
◦ Investigates and tries to reconcile interests
◦ Can’t compel employer to do anything though
4. Cause Determination
◦ If EEOC finds probable cause, will contact employer for conciliation/settlement
• If employer refuses conciliation or the cause isn’t settled despite
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attempts, then EEOC issues a “Right to Sue” Letter to
Complainant
◦ If EEOC doesn’t find cause then complainant is given “Right to Sue” Letter
◦ For ADA and Title VII, after 180 days can ask for a “Right to Sue” Letter
even if a decision hasn’t been made by EEOC (only 60 days for ADEA)
5. Judicial Enforcement
◦ Must bring claim in federal court with 90 days of receiving the “Right to
Sue” Letter – regardless of whether it’s by request or after a cause
determination
◦ For ADEA, only have to wait 60 days after filing with EEOC before
bringing a case to federal court
◦ District Court will review EEOC decisions de novo
Damages
 Total amount of damages – punitive and compensatory – is based on
number of employees the employer has
Timing
 When do the 300 days begin to run? The first act or the final act?

Equal Pay Act (EPA)– employees who do the same kind of work are entitled to be paid at
the same rate (regardless of gender)
 Entitled to liquidated damages, no compensatory or punitive damages
 No exhaustion requirement
 Almost any claim under the Equal Pay Act will also be actionable under Title VII

* Lilly Ledbetter Fair Pay Act overrules the Ledbetter decision and making Ginsburg’s
dissent the law (Amended Title VII)
1. An unlawful employment practice occurs, with respect to the
discrimination in compensation in violation of this title, when:
◦ A discriminatory compensation decision or other practice is adopted
◦ An individual becomes subject to a discriminatory compensation decision or
other practice
◦ When an individual is affected by application of a discriminatory
compensation decision or other practice, including each time wages,
benefits or other compensation is paid, resulting in whole or in part from
such a decision or other practice
• Every discriminatory claim (i.e. every paycheck) restarts the
clock with regard to the SOL
2. Will still have to prove intent on the part of the employer, however many years ago
that the discriminatory intent occurred
3. Can go back 2 years from when you file a charge for back-pay

REMEDIES: back-pay, front-pay, and reinstatement/instatement


 Basic Remedial Principles
◦ Deterrence and Compensation Principles
1. Deterrence principle – effectuated by the rightful place theory of
relief
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– award the terms, conditions, or privileges of employment that
they would have had but-for the unlawful employment
discrimination
2. Compensatory principle – effectuated by the make-whole theory
of relief – monetary compensation to remedy economic harm
suffered in past or may suffer in future as consequence of
unlawful employment discrimination
◦ Compensatory and punitive damages available under §1981 cases
◦ 1991 Act now makes them available under Title VII and ADA but only
for disparate treatment cases not involved mixed-motive claims
1. For ADA, entitled to back-pay from the date terminated until
the judgment but can only go back 2 years
2. For ADEA claims under federal law, remedy is doubled back-
pay; except if you have a supplemental state law claim

REINSTATEMENT/INSTATEMENT
 Objectives:
1. Recreates the employment relationship as it would have existed by for
unlawful employment discrimination
2. Prevents future economic loss to Plaintiff
3. Allows an employer to demonstrate good faith compliance with law to
other employees
4. Prevents employer form trying to get rid of employees, at any cost, who
assert their rights under laws prohibiting discrimination in employment
 Reinstatement inappropriate if:
1. Innocent employee would be displaced by reinstating Pl; or
2. Hostility or animosity/hostility between Pl and employer would make
amicable and productive working relationship impossible; or
3. Position has been eliminated due to RIF, merger, etc.
 Instead can get front-pay when reinstatement is inappropriate
 In mixed-motive cases, under amendments that came after Price Waterhouse case, if
employer can prove that it would’ve made same decision excluding discriminatory
motive, Plaintiff doesn’t get presumptive reinstatement or injunctive relief gets
declaratory relief and attorney’s fees

FRONT-PAY
 Monetary award to compensate for future lost wages during the period between
judgment and reinstatement or in lieu of reinstatement (discretionary)
 No federal statute specifying front-pay as remedy but judicial opinion awards it
under Title VII, ADEA, ADA, Rehabilitation Act, and §1981
 Same elements in determining front-pay as those used in determining back-pay
◦ 7th Circuit calculates it as the difference (after proper discounting to present
value) between what Pl would have earned in the future had he been
reinstated at the time of trial, and what he would have earned in the future
in his next best employment
 Usually 2-3 years of pay

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BACK-PAY
 Cannot extend more than 2 years prior to filing of a charge. Pertains
primarily to promotion decisions.
 For termination, back-pay begins at date of termination until judgment on liability
 Back-pay includes:
1. Salary, raises and cost of living raises, value of contributions to
retirement plan, other benefits employer gives
 You get it if you win – presumptive entitlement (not determined by jury)
 Mixed-motive case
1. If employer proves it would’ve made same decision Pl gets limited
relief (attorney’s fees and costs, declaratory judgment, and injunctive
relief)
2. If employer unable to prove that it would’ve made same decision Pl gets
back-pay, reinstatement, compensatory damages, etc.
 Limiting back-pay liability
1. Mitigation doctrine – employee has a duty to mitigate the damages
i. Must look for a job
ii. Burden on employer to prove failure to mitigate
2. Employer may offer plaintiff their job back – back-pay stops when
employee begins working
i. Refusal must be for good cause
3. Employer may try to find “dirt” on the employee in order to show
that discharge/employment action was legit
i. Would preclude back-pay
4. If employer can prove that it no longer has the job – it’s been eliminated –
that would cut off the back-pay period

*Back-pay, front-pay, reinstatement = equitable remedies, determined by judge

Compensatory and Punitive Damages


 Compensatory damages are defined under 1991 Act to include “future pecuniary
losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment
of life, and other non-pecuniary losses”
 Punitive damages maybe recovered if Pl proves that D engaged in an unlawful
employment practice “with malice or with reckless indifference to the federally
protected rights”
1. Requires conduct that more than intentional discrimination
2. Factors considered: nature and severity of the discriminatory
conduct, duration and frequency of conduct, and financial status
of employer
 Combined compensatory and punitive damages are capped; hasn’t been changed
since 1991
1. Employer has more than 14 but less than 101 employees – cap is $50K
2. Employer has more than 100 but fewer than 201 employees – cap is $100K
3. Employer has more than 200 but fewer than 501 employees – cap is $200K
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4. Employer has more than 500 employees – cap is $300K
 JURY DETERMINES compensatory and punitive damages
◦ Jury isn’t informed of caps, judge reduces any award in conformity with the
caps
 Compensatory/Punitive Determinations don’t include back-pay and front-pay
◦ The judge determines these.

Liquidated Damages

Only under ADA


 Get it regardless of proof of physical/emotional distress if employer action is willful
 Much more routinely awarded in ADA cases than punitive damages are awarded

Taxation
 Back-pay always considered taxable income
 Rule is that damage for emotional distress are taxable, with slight exceptions
sometimes for emotional distress that is the result of physical injuries. Then,
punitive damages are taxable.

Attorney’s Fees
 Need a judicial decree to receive an award of attorney’s fees
i. In a private settlement, you aren’t entitled to attorney’s fees
 In an ADA claim, if P wins, D pays P’s attorney’s fees
 Rebuttable presumption that D isn’t entitled to attorney’s fees
i. Can rebut if P’s claim is found to be frivolous then P would pay
D’s attorney’s fees.
 Calculating attorney’s fees
i. Includes: attorney’s work hours, deposition costs, and court fees
ii. Reasonable hours x reasonable rates
iii. Must keep records specifying what you’re working on because only
entitled to attorney’s fees for claims on which you prevailed
iv. Awarded after a court decision so takes some time to get this money
 If working without a fee (non-profit or pro bono) – still entitled to fees b/c
part of remedial scheme of Title VII – prevailing market rate for attorney
i. Attorney’s fees are a form of punishment to hurt the employer

Basic Remedial Principles


1.Deterrence (Franks): the rightful place theory relief. A court is to award successful Ps
the “terms, conditions, or privileges of employment” they would have had with D
but for unlawful employment discrimination.
2.Compensation (Moody): make-whole theory of relief. Successful Ps are entitled to
monetary compensation to remedy the economic harm they have suffered in the
past or may suffer in the future as a consequence of the D’s unlawful employment
discrimination.

Offer of employment after rejecting the applicant


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• Absent special circumstances, an offer of employment to a rejected applicant tolls the
accrual of back pay if Er makes an unconditional offer of the job denied, even if the
offer does not include all the relief that the plaintiff is entitled to receive \

The Caps on Compensatory and Punitive Damages


• Employer’s with 14-100 employee’s: $50,000
• 101-200 employee’s: $100,000
• 201-500 employee’s: $200,000
• More than 500 employee’s: $300,000
 All money awards are taxable (except the attorney’s fees)
 Attorney fees are recoverable (by the prevailing party, and it means if Employee
wins. If Employee loses, Employer would have a hard time recovering the attorney’s
fees from Employee – will have to show that Employee’s claim was frivolous,
groundless, or made in bad faith, which is usually not the case if the claim got to
trial). The fees are calculated as (reasonable hours) x (reasonable rates).

Two “make whole remedies”


1. Back pay (can only go 2 years back)
◦ Base salary
◦ Benefits – health insurance (what you paid for private insurance or if
you didn’t have insurance, what you paid for health care costs),
contribution to retirement/pension
◦ Cost of living raises, merit raises, bonuses
◦ Pre-judgment interest (present value of money you would’ve gotten 2
years ago)
2. Injunctive relief
◦ Reinstatement or front pay
• Will reinstatement “bump” an innocent employee?
◦ Mitigation of damages
• Did employee try to find other work
• Attempt to hire person back
• Unemployment insurance benefits (may or may not cut against
award)
◦ Compensatory and punitive damages
• Injury to reputation
• Evidence of malice by employer
• Only if there is intentional discrimination

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