Beruflich Dokumente
Kultur Dokumente
SUMMER 2018
Disparate Treatment………………………………………………….….2
MixedMotive……………………………………………………… 4
Systemic DT…………………………………………………………. 6
Disparate Impact……………………………………………………. 7
Retaliation……………………………………………………..……….9
Sex Discrimination……………………………………………………..14
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
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2. MIXED-MOTIVE
*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.
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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)
*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.
Who is Protected?
Former employee’s, third parties (Thompson v. North Am. Stainless)
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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.
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).
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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CASES:
Harris v. International Paper Co.
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II. SPECIFIC CATEGORIES OF
DISCRIMINATION
*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.
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
Ministerial exemption – goes beyond Religious Entity Exemption – in the hiring and firing
of clergy, or other church employer who have a religious mission.
§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).
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.
*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
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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`
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
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
Liquidated Damages
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
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