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5th Amendment nor be deprived of life liberty or property without due process of law Has been held to also provide equal protection under the law Buckley v Valeo 14th Amendment No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States nor shall any state deprive any person of life liberty or property without due process of law nor deny to any person within its jurisdiction the equal protection of the laws Title VII of the Civil Rights Act of 1964 sex race color religion and national origin Purpose to assure equality of employment opportunities and eliminate those discriminatory practices and devices which fostered racially stratified job environments to the disadvantage of minority citizens 0 Title VII applies to employers with 15 or more emplovees To invoke you must file charge with EEOC first Have to file with EEOC within 180300 days statute of limitations Statutory caps on damages based on the size of the employer If EEOC doesn t pursue it then they can give you a right to sue letter and you have to sue within 90 days 0 Entities covered by Title VII employers labor unions employment agencies 703bcd Not Covered Indian tribes and certain private membership clubs other than a labor organizations 42 USC Sec 1981 Should bring race claims under both 1981 and Title VII 0 All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts to sue be parties give evidence and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens and shall be subject to like punishment pains penalties taxes licenses and exactions of every kind and to no other 0 For purposes of this section the term quotmake and enforce contractsquot includes the making performance modification and termination of contracts and the enjoyment of all benefits privileges terms and conditions of the contractual relationship 0 Sec 1981 applies to employers without regard to size and to independent contractors Filing of EEOC not required like under Title VII Much longer statute of limitations No caps on damages Age Discrimination in Employment Act of 1967 ADEA Can t discriminate against someone 40 or over Page 450 Statute applies to govern companies with 20 or more employees Americans with Disabilities Act of 1990 ADA can t fire someone because they have a disability You can take into account job performance but not solely cause of disability Goal to bring more people with disabilities into the work place didn t work Employment AtWill Doctrine CL Horace Wood s 1877 Treatise Most employees can be terminated or can quit at any time for good reason bad reason or no reason at all However if you think you ve been discriminated against then the burden is on the worker to prove the discrimination 0 Payne v Western amp Atlantic Ry 1884 men must be leftto discharge or retain employees at will for good cause or for no cause or even bad cause without therefore being guilty of an unlawful act per se Discrimination cases put the burden of proof on the plaintiff Preponderance of the evidence standard What is Discrimination New American Oxford Dictionary Discrimination the unjust or prejudicial treatment of different categories of people especially on the grounds of race age or sex disability sexual orientation Two types of approaches under Title VII Discrimination l employer treats some people less favorably than others because of an illegitimate motive race religion sex or national origin a Proving Individual Disparate Treatment i Field experiments and audit studies identical resumes but different races Employers would give interviews to white applicants more often than black applicants Also people with white names are given more interviews than people with ethnic names ii Cognitive bias and social cognition theory 1 Unconscious discrimination 2 Implicit association test 3 Implicit bias in the courtroom 2 is whenever the policy looks facially neutral but effects one group more harshly than others has the effect of discriminating against the protected group and cannot be justified by business necessity Proof of motive is not required Does not apply to see 1981 claim Policy Bases for AntiDiscrimination Law 1 Freedom of contract individuals own their own labor and they are free to sell or not to sell antidiscrimination laws are an assault on this freedom 2 Market view discrimination is not the most cost effective way of doing business therefore the market over time will correct the practice a Counter Arguments 1 People don t always act rationally 2 What about the individual victims during the correction 3 If we all agree that the market will eventually arrive at a known point why not just go to that point 4 How come the market didn t correct over the 100 years after slavery was abolished 3 Statistical discrimination often membership in a protected group is correlated with ability People discriminate without animus everyday based on probability ascertained from their life experience Statistical discrimination is often a cheap and therefore in the business context rational way to make decisions In business however it is prohibited 4 Business cost sometimes it is cheaper for a business to discriminate whether through statistical discrimination or overt For instance most people prefer a homogenous work environment By providing it to them employers are maintaining morale and decreasing employee turnover Does intentional discrimination require a conscious intent to discriminate or is it enough to find that the plaintiff s protected class status caused the decision to occur Cognitive bias gt Systemic disparate impact does not require intent stems from facially neutral policies But disparate treatment is intentional discrimination gt The symphony orchestra example when they auditioned behind a blind screen more women were hired based on talent because music was a male dominated field ttern and Practice cz nemployer39s standard operating procedure is to discriminate against people in violation of Title VII This usually involves statistics as there is not evidence of a formal policy or statement of discrimination so plaintiff generally only has numbers see also page 17 o Prima facie case based on gross statistical disparities 2 0 Compare relevant labor market and employer work force I Relative labor market can be ascertained by geography ie law firm does national recruiting the labor mkt is US I Plaintiff wants the highest relevant labor market employer wants a low number I of people in work forceemployer wants to have the higher number plaintiff wants the lower 0 There will be fighting within the litigation to determine the correct percentages to look at I 2 to 3 standard deviations indicates an unreasonable disparityfor our purposes look for a BIG gapindicative of discrimination I Buttress evidence with specific instances of discrimination if possible 0 Employer Rebuttal o PostTitle VII data Have to make sure that the data being used re ects post Title VII data and not discrimination that occurred before the implementation of Title VII 0 Applicant ow data claiming the P used the wrong labor market or time period for statistics I Applicant owcan be skewed depending on where the company is located and how far people have to travel to get to the job I Customer preference NOT A VALID DEFENSE see Sears I This might lend support to the applicant pool available to the employerargument is this might give a better picture of what really occurred 0 Bona Fide Seniority System as long as it s not intentionally discriminating 0 Person Doesn t Fit in best defense to prima facie case this is why it is more difficult for the more skilled person Prima facie case of employment discrimination for Pattern and Practice Cases 0 Plainti has to make out the prima facie caseestablish by a preponderance of the evidence that racial discrimination was the company 39s standard operating procedureregular rather than the unusual practice 0 Employer then has to rebut I If it can rebutemployer wins I If it can 39t rebutemployer loses Disparate treatment ER intentionally discriminated Disparate impactdiscrimination is incidental facially neutral practice is disproportionately affects a protected group Becker s Model of Tastes for Discrimination I Individuals will want more pay or will take less pay to avoid working with certain groups ie whites will want more pay if they have to work with blacks Under this theory the worst case scenario is an integrated workforce Better to have either an allwhite work force or an allblack workforce Allwhite you avoid the premium that you would have to pay to get whites to work with blacks Allblack you are able to pay them less bc other firms may not want to hire them How does Discrimination Arise I Statistical Discrimination 0 Employer isn39t sure about the group a person belongs toemployer will have to incur more costs in working with them to figure out if the person is better than the group that has a bad reputation or it can avoid these costs by not hiring I Status and Stigma 0 For some people discrimination occurs bc some people derive status by not being a member of a particular group or by keeping certain other people from being a part of their group 3 Intersectionalism Discrimination p 45 when discrimination occurs not because of one protected trait such as race but rather because of two such as race and sex Courts have acknowledged claims based upon multiple factors ex Asian Woman or Black Woman Mistaken Discrimination if the employer thought the person was an African American and didn t hire them when they really weren t Claim based on perception same for ADA every if you don t have a disability but they discriminate against you you can bring the claim regarded as Also discrimination is actionable under Title VII because of a Relationship Based Race Discrimination IE if a white person is discriminated against because of their personal relationship with a black person Individual Disparate Treatment where an individual is treated different because of their racesexreligionagenational origin etc it is an unlawful employment practice for an employer Antidiscrimination 703al to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation terms conditions or privileges of employment because of such individual s race color religion sex or national origin or Antisegregation 703a2 to limit segregate or classify employees or applicants for employment in any way that would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee because of such individual s race color religion sex or national origin Title VII also includes ancillary provisions that prohibit retaliation against employees who oppose discrimination AntiRetaliation 704a Can t retaliate against EE s who work to increase employment opportunities Title VII applies when an ER is a person engaged in an industry a ecting commerce with 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year 701b Includes employment agencies that provide employment to statutorily defined ERs Title VII will cover you if you are overseas for an US based company but will not cover you if it would violate the law of the country From Civil Rights Act of 1991 703m If P demonstrates that Race Color Religion Sex or National Origin was a motivating factor unlawful employment discrimination is established i 701m Demonstrates meeting the burden of persuasion amp production Should employers be required to attempt to minimize workplace bias Then is that discrimination against the racist because personal opinions don t effect work place performance perhaps This could cause government intrusion in the work place even more than there is now When you have individual disparate treatment with direct evidence you do not use ping pong Two kinds of cases 1 employer has a formal facially discriminatory policy requiring adverse treatment of employees with a protected trait 2 the employer may have been motivated by a protected trait on an ad hoc informal basis The court looks to see if the prohibited basis played a role in the decision and had a determinative in uence on the outcome Plaintiff must prove by a preponderance of the evidence that the defendant would have treated plaintiff differently but for plaintiff s protected status he said she said case There is no doubt that what the employer was doing was wrongthere is evidence of what a person said in writing by witnesses etc 0 If you can prove the stmt was said and the employer acted on it this is an easy casedon39t have to go through any other steps a Employer39s argument could have been that this employee was an agent acting outside of his scope and company shouldn39t be liable for the employee39s actions But under Title VII an employer includes its employees and agents In cases under Title VII the intent required by the statute may be inferred from the defendant s conduct The statute requires only that a defendant has meant to do what was done that is the act or practice must not be accidental The evidence does not have to be direct in the meaning of stating You must do this work because you are a woman Examples of statements indicating different kinds of discriminatory intent w when looking at statements which are evidence of discriminatory intent consider whether the word is used innocently and only reacted to because of heightened sensitivity a A statement to an employee that she should be more feminine if she wants to be promoted b Nobody can make me hire a negro 0 Employee was told that he was discharged until he got things straightened out with the apostle of the church 1 Old dogs don t know how to hunt e Calling plaintiff a camel jockey and rug peddler and telling him to go back to Syria and fight the Israeli Army and kill the Jews Statements which indicate a stereotype Courts don t like stereotyping because they can cause people to discount or reinterpret objective evidence While stereotypes are not inherently bad they are inherently dangerous Slack v Havens 9th cir 1975 four black women bring claim of race discrimination when they were discharged from their work for not performing harder cleaning labor White female employee not asked to clean Violation of Civil Rights Act of 1964 42 USC 2000e2al Yes 0 Is D an employer under Title VII of Civil Rights Act Yes 50 or more employees 0 PROOF Were Mr Pohasky s racist statements material and attributable to the D Yes because he is y agent of the employer under 42 USC 2000egb Then higher level management backed up Pohasky s ultimatum and ratified his discriminatory conduct by firing the women D could have said his statements were not representative of the company s views and then rehired the women or not fire them but they didn t 0 Unequal treatment in and of itself is not a statutory violation The unequal treatment has to be done because of the plaintiff s race So long as the women were being treated unequally because of race there is a violation of 703a 0 Court definite causal relation between Pohasky s conduct and firings the employer must have considered age and it must have been a determinative factor no mixed motive for ADEA ADEA Sec 623a1 Unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation terms conditions or privileges of employment because of such individual s age 1 2 3 4 In age discrimination cases the courts often look for comments that imply a person cannot adapt to change However if competence is truly at issue than a discharge is legal Another way age is different than race is that being less than a certain age can be a BFOQ Airline pilots police officers fire fighters Further an age discrimination case can occur where someone who is 55 is fired and someone who is 45 is hired when the one hired is noticeably or substantially younger As opposed to a woman who was fired and replaced by a woman it would be harder to prove gender discrimination Another issue is the use of the excuse of overqualification a Overqualification is a legitimate concern Instead of assuming a person will get bored with the job they should just ask b Qualified Can do the essential functions of the job has an interest in the job and wants to do the job ADEA Hazen Paper Co v Biggins SC 1993 62 year old employee fired a couple of weeks before his pension plan vested Brings age discrimination suit 0 Whether an employer violates the ADEA age discrimination in employment act by acting on the basis of a factor such as an employee s pension status or seniority that is empirically correlated with age Court says No there is no disparate treatment when using something other than age so does not constitute direct evidence Disparate treatment under ADEA makes it unlawful for an employer to discriminate because of such individual s age So did age motivate the employer s decision Even if the motivating factor is correlated with age like a pension plan it may not be disparate treatment An employee s age is distinct from his years of service Held An employer does not violate ADEA just by interfering with an older employee s pension benefits that would have been vested by virtue of the employee s years of service 0 Pension discrimination illegal under ERISA Employee retirement income security act but not ADEA So instead he should have brought two different claims Ping Pong 9 used when plaintiff does not have direct evidence of discriminatory intent just inferences Analysis below Use the McDonnell Douglas analysis for 1981 claims as well as Title VII McDonnell Douglas Corp v Green US SC 1973 black respondent involved in illegal stallin after being fired Tries to get rehired by the same company and they say no He claims racially discriminatory hiring practices under Title VII 703al Was there a legitimate nondiscriminatory reason for the employee s rejection Participation in unlawful conduct against the company 0 But was this reason by the company a pretext White employees involved in the stallin were retained or rehired The company would need to have treated them all the same On retrial the respondent will have to show that the company s reason for refusing to rehire him was a pretext or discriminatory 0 But what if the company s reason for not hiring him was because of both his previous conduct and his race Mixed motive Race has to be the butfor cause If you have direct evidence like Price Waterhouse then you do not need to pingpong this test is also used for ADA and ADEA claims 1 The plaintiff must establish a prima facie case of discrimination burden of proof which creates a legally mandatory and rebuttable presumption that the employer discriminated a How to show prima facie case in Green 1 that he belongs to a certain protected group under Title VII ex race 2 that he applied and was qualified for a job in which the employer was seeking applicants 3 that despite his qualifications he was rejected and 4 that after his rejection the position remained open and the employer continued to seek applicants from persons of complainant s qualifications you can still have a prima facie case even though the employer hasn t filled the position yet although it is more helpful if you have a comparator see below i This can be modified based on the case you have Also can look to see who you were replaced with Ex if white coworkers who were also involved in the stallin were rehired then the court could consider that ii Some courts have required the plaintiff to show that she was doing satisfactory wor in order to negate the obvious reason for termination or that she was replaced with someone outside the plaintiff s protected group or both b When there is a group of people being fired and the positions are no longer left then a prima facie case showing requires that the person was discharged and other similarly situated employees who were nonmembers of the plaintiffs protected class were treated more favorably c P has the Burden of Persuasion has to prove each of the 4 steps above by a preponderance of the evidence Burdine This is the easy step for the plaintiff The burden is very light But it is an absolute necessity to show i Provides only an inference of discrimination if not rebutted P wins F urncoan inference does not equal a Title VII violation P only wins if the inference can t be rebutted 2 D then has the Burden of Production they must establish some LNR legitimate nondiscriminatory reason the employer has the burden of production to put into evidence a legitimate nondiscriminatory reason for the alleged discriminatory decision a Must provide not prove just state by admissible evidence a reason for the employer s action Companies always come up with an alternative reason which makes the presumption disappear The alternative reason must be submitted into evidence and the D must provide a sufficiently specific reason to carry its burden of production 3 The burden can destroy the presumption but the plaintiff has the opportunity to then prove that the supposed reason was really a pretext for an underlying discriminatory motivation 7 Pretext is taken to mean a lie a deliberate falsehood something not worthy of credence i However the honest belief rule is basically when the reason is based on a mistake Ex if D believed reason to be true when they made the decision then it s not a lie Promotion of white candidate based on faulty performance ratings was nevertheless a legitimate nondiscriminatory reason for failing to promote the African American Upshaw v Ford Motor This step gives the P an opportunity to respond to the employer who can say anything with no real burden Employer should have to prove it and not just say it With pretext the plaintiff has the last shot to show that the employer is lying However even if the P shows that the defense is pretext it does not equal an automatic P victory According to the SC the fact finder has to find that both that l the D s reason is pretextual and 2 the pretext to be a coverup for an underlying discriminatory motive You don t just win because the employer lied Rule from Reeves Can use Comparator Cases see below Pretext only rule whenever any showing of pretext lying would automatically result in judgment for the plaintiff Hicks SC held that a pretext showing did not require judgment for the plaintiff because they still had to prove that the reason the P was fired was because of discrimination This is called the Pretext plus rule which requires additional evidence The Reeves case basically rejects this additional 3rd step of pretextplus No courts continue to use the pretext plus rule Reeves v Sanderson Plumbing Products US 2000 What kind of and amount of evidence does a jury need to sustain a verdict that an employer discriminated on the basis of age Should the employer have gotten judgment as a matter of law No P contends age and D contends failure of responsibilities didn t keep time sheets properly When P alleges disparate treatment liability depends on whether the protected trait under ADEA age actually motivated the employer s decision The trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purposeThus a plaintiff s prima facie case combined with sufficient evidence to find that the employer s asserted justification is false may permit the trier of fact to conclude that the employer unlawfully discriminated pretext only rule inference of discrimination 0 In this case the P established a prima facie case and the employer rebutted it Then P proved reason to be pretextual I However SC said there was not enough evidence to prove discrimination Court rejection of employer s LNR permits but does not compel judgment for the Plaintiff It is not enough that the jury disbelieves the employer s reason they must also believe the P s explanation of intentional discrimination Age based statements by employer could not qualify as direct evidence of discrimination but can be circumstantial evidence that could support drawing the inference of discrimination Whether judgment as a matter of law is appropriate will depend on a number of factors how strong the P s prima facie case is the probative value of the proof that the employer s explanation was false and any other evidence that supports the employer s case and that properly may be considered on motion for judgment as a matter of law 0 Under rule 50 Judgment as a matter of law is granted when a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for a party on that issue SC has denied heightened pleading requirement but the standard has changed dramatically in the last decade Now the claim must contain suf cient factual matter accepted as true to state a claim to relief that is plausible on its face Facial plausibility is when the P pleads factual content that allows the court to draw the reasonable inference that the D is liable for the misconduct alleged Can seek JMOL judgment as a matter of law at three points 1 summary judgment under rule 56 2 after the plaintiff rests directed verdict under rule 50a and 3 after the jury verdict under rule 50b like JNOV judgment notwithstanding the verdict P was fired for an unlawful reason and a new lawful reason was found laterthis info wasn39t known at the time P was fired McKennon v Nashville Banner Publishing P laid off and filed suit for age discrimination In her deposition company found out she had stolen company documents which would have been a lawful reason to fire her Not a mixed motive case 0 If a later legal reason was discovered to fire the P then the P only entitled to back pay from the time she was fired up until the point where the court discovered the legal reason to fire her No reinstatement can be awarded but P can get attomey s fees Title VII Sec 703a1 prohibits discrimination because of race color religion sex or national origin 42 USC Sec 1981 Sec 1 of the Civil Rights Act of 1866 provides that all persons shall have the same right to make and enforce contracts as is enjoyed by white citizens In regards to race Title VII protects everyone Sec 1981 protects everyone When bringing a race claim you should discuss 1981 and Title VII on exam McDonald v Santa Fe Trail Transportation Co US SC 1976 two white employees were fired while black employee was rehired They think they should have all gotten the same treatment Are whites protected by Title VII 0 Title VII protects any individual because of that individual s race This does not specify that they have to be a minority 0 Held Title VII prohibits racial discrimination against anyone Like Green case all individuals were involved in illegal activity against the company misappropriating product but that does not matter whenever the black worker was rehired and the white ones weren t 0 Court looks at the text legislative history a couple of senators said that it covers whites and all citizens and the EEOC s position Legislative history isn t always accurate and not conclusive of the opinion of the whole In 1866 Congress was probably trying to protect nonwhites because they were meant to be protected like white citizens 0 Are whites protected by Sec 1981 Yes 42 USC statute 1981 is applicable to racial discrimination in private employment against whites Says All persons 0 Look at text and legislative history black people weren t technically legal persons before this E 1981 only applicable for race and national origin claims not gender or religion What is Race SC uses the meaning of race in 1866 scientific notion of races p 44 Section 1981 used 5060 different types of races not just nationalities or originalities 0 The SC held that Arabs are considered a race for purposes under 1981 even they were generally considered Caucasian Jews are also considered a distinct race Shaare Tefila Congregation v Cobb 0 Color is a separate discrimination than race Usually the darker skinned African American is the P and the lighter skinned is the D There has always been discrimination on the basis of color Use the pingpong test There are cases like this for Cubans and South Americans as well Reverse Discrimination to establish prima facie case Plaintiff must present evidence of background circumstances that establish that the D is that unusual employer who discriminates against the majority Were whites discriminated against at a typically black university Can use disparate treatment case where a plaintiff prevails by proving that she was treated differently than a comparator a similarly situated person of the other sex or a different race Some courts require the comparator to be nearly identical to the plaintiff But most courts only require sufficiently comparable members i Look for people to contrast who ve worked there around the same amount of time as you in a similar job position or with similar qualifications who is a different race and treated differently ii Employer could then defend by showing a similarly situated samerace employee who was treated differently claiming that it doesn t have to do with race iii Employers have learned to treat everyone the same for the same infractions Ex they fire everyone who comes in late no matter the race or gender or age So they can claim they aren t discriminating Scope of surrebuttal to prove pretext Patterson v McLean Credit Union US SC 1989 District court said that to prevail on a promotion claim the black worker had to show that she was better qualified than her successful white competitor SC disagrees 0 SC says to use the McDonnell Douglas three tiered test pingpong 0 D said black woman did not receive the promotion because the other applicant was better qualified for the position legitimate nondiscriminatory reason There are many ways in which the P is allowed to show that this reason is pretextual 0 She had to prove purposeful discrimination not that she was better qualified She could also persuade the jury using past treatment racial harassment and failure to train her Ash v Tyson Foods US SC 2006 Plaintiffs claimed discrimination because less qualified whites were promoted instead of them Superior qualifications may be probative of pretext when combined with other evidence Jump off the page and slap you in the face standard However it is not the only standard to show discrimination But superior qualifications could be sufficient evidence of pretext to go to jury 0 How do you show your client is more qualified Work there longer better performance performance reviews done by the company education and training But sometimes the D will just say that they don t 10 agree with your evaluation You have to compare and contrast the plaintiff s and comparator s qualifications 0 Other types of admissible evidence to show pretext prior treatment of the plaintiff defendant s stats failure to follow procedures unreasonable decision V business judgment Bus J udg Rule courts should not second guess business decisions but if it objectively unreasonable and results in adverse effects on the basis of a protected trait then it can cast doubt on the business decision 0 Is the P required to prove that all LNRs legitimate nondiscriminatory reasons are pretextual Some courts say yes and some say no if you were representing the company you d want them to give several reasons if the P had to rebut each But could be a downside to listing a lot maybe the P could show more pretext and then the jury would just think you re a liar Staub v Proctor Hospital US SC 2011 two supervisors who didn t like the P in uenced the employer s decision but did not make the ultimate employment decision Were the supervisors who did not like the P s obligation to military service a motivating factor in the employer s action under USERRA 0 Cat s Paw Case trying to hold the company decision maker responsible for someone s actions who didn t actually do the dirty work Getting an underling to do your bad work for you 0 Problem arises when the official has no discriminatory animus but is in uenced by previous company action that is the product of like animus in someone else supervisors were writing him up a lot for nothing to make him look bad 0 The court holds in favor of the P That whenever a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action and the act is the proximate cause of the ultimate employment action then the employer is liable under USERRA Uniformed services employment and reemployment rights act of 1994 0 Scalia says it s a federal tort and intentional tort so can you aggregate the supervisor s discrimination with the firing person Says that the discriminatory actions can be the proximate cause of the employment decision but PC is usually for negligence not intentional 0 Independent investigation of employee s allegations The motivations of individuals may be attributed to the body in appropriate circumstances most obviously when a majority of the members have such thoughts It should not be necessary however that a majority of members share a particular thought one or more members may be so in uential that they can effectively determine the result If such opinion leaders act from tainted motives it may be fair to conclude that the decision of the body is tainted Title VII 703e1 Illegal for anyone to discriminate against any individual with respect to compensation terms conditions or privileges of employment Hishon v King amp Spalding US SC 1984 P sues for gender discrimination after being considered and rejected for partnership at law firm Court rules that under Title VII consideration for partner was a term condition or privilege of employment P alleged the law firm used the prospect of ultimate partnership to induce young lawyers to join the firm 11 0 Employer claimed title VII should not apply to partnerships Court held contract to consider the plaintiff for partnership was a term condition or privilege of employment was part and parcel of the employment relationship Employer doesn t have to grant privileges but if they do can t be done in a discriminatory fashion 0 Limitation of Title VII prohibition of discrimination by employers is limited to discrimination in the employment relationship So a partner in a law firm would not be able to sue under VII because they wouldn t be an employee 0 Broadening of Title VII firing is not the only actionable offense Title VII can also apply to compensation terms conditions or privileges of employment or to limit segregate or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee Minor v Centocor 7th Circ 2006 D required P to work more hours than before but same job She worked 25 longer to earn the same income However this was not connected to gender or age 0 Court held that adverse emplovment action was not discrimination and not included under Title VII Need to distinguish between 1 material differences and 2 day to day travails and disappointments 0 Can extra work constitute a material difference in employment Look to whether it applies to everyone or a single person why are they being treated differently when conduct by the employer is so severe that it would lead a reasonable employee to quit Must be an abusive work environment and so intolerable that resignation was qualified as a fitting response 0 Does there have to be an aggravating factor as well Demotion reduction in salary reduction in job responsibility reassignment to menial or degrading work badgering harassment or humiliation by the employer intended to encourage the employee s resignation or offers of early retirement or continued employment on less favorable terms 0 Such constructive discharges are equivalent to formal discharge Some conduct may not in itself be adverse employment action but when combined with other conduct may contaminate the work environment and then be actionable Discrimination v Retaliation Ps allowed to sue for any retaliation whether or not related to employment so long as the P can show that a reasonable employee would have found the challenged action materially adverse This objective test is important because it separates significant harm from trivial harm Ps don t have to prove ultimate employment action like a firing for retaliation 5th circuit in McCoy differentiated retaliation from discrimination in that the ultimate employment action test is still to apply in discrimination cases under Title VII Linking Bias to the Adverse Employment Action Price Waterhouse v Hopkins US SC 1989 woman denied partnership at large accounting firm because of her brusqueness at work interpersonal work relationships but also because she was a woman Sexual stereotyping was involved to the extent that she acted too masculine and should look and act more ladylike 0 Balance between employee rights and employer prerogatives Gender must be irrelevant to employment decisions Court holds that the burden is on the P to show initially by a preponderance of the evidence that the discrimination was a motivating factor D can avoid liability by showing by a preponderance of the evidence that it would have made the same decision even if it had not taken the P39s gender into account Sexbased comments don39t necessarily show that gender played a part in 12 an employment decisionP has to also show the employer relied on a person39s gender to make its decision Have to have both prongs bc have to balance employer39s freedom of choice with the employees rights 0 Central Point while an employer may not take gender into account in making an employment decision it is free to decide against a woman for other reasons 0 Once a plaintiff shows that gender played a motivating part in an employment decision the defendant may avoid liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not allowed gender to play such a role Sometimes the legal reason might be strong enough to warrant not promoting her 0 O Connor concurring thinks butfor causation should be used Thinks that it should not be based on a motivating factor but a substantial factor 0 Expert witness used on sex stereotyping Kennedy thought that testimony should not have been given credence Thinks sex stereotyping should not be a claim under Title VII If there s a race claim on the exam you have to go through Title VII and Section 1981 Biggins firing could have been a combination of both age and pension vesting one illegal motive and one legal motive If the employer was wholly motivated by pension vesting there can be no age discrimination Wholly motivated means sole cause With mixed motives the plaintiff has to prove to the fact finders butfor causation The fact finders have to find that the prohibited consideration was a determinative factor With mixed motives l the P has to prove that the D violated the statute then 2 the employer has the burden of proving that they would have made the same decision anyways Which can either cap their possible damages or not Employer will be liable after the 1st step violation of statute Mixed Motives Remedies 0 Under Title VII 703m violation 9 even if employer would have done the same thing P wins but damages are limited to declaratory relief injunctive relief attorney s fees but not reinstatement or promotions 0 Under ADEA or 1981 violation even if the employer would have made the same decision the P loses and no damages are awarded This is because a mixed motive claim is not available in ADEA cases see Gross The SC has not yet determined whether the analysis applies to 1981 cases some federal appeals courts have said that it does while other have said that it does not Title VII Section 703m an unlawful employment practice is established when the complaining party demonstrates that race color religion sex or national origin was a for any employment practice even though other factors also motivated the practice 0 Section 703m analysis 1 protected characteristic is motivating factor in employment decision employer is liable 2 employer proves same decision would have been made P receives limited remedies 3 employer fails to prove decision would have been made full remedies Title VII Section 706g2B a P proves a violation of 703m and the employer established the samedecision defense Court may award declaratory and injunctive relief attorney s fees and costs Court shall not award damages issue an order requiring admission reinstatement hiring etc page 77 0 Liability attaches at different points in g2B and m 13 Price Waterhouse Analysis 1 protected characteristic is motivating factor in employment decision 2 employer proves same decision would have been made not liable then case goes away or 3 employer fails to prove same decision would have been made so they are liable and there are full remedies available Desert Palace v Costa US SC 2003 Issue Whether a plaintiff must present direct evidence of discrimination in order to obtain a mixedmotive instruction under Title VII SC holds that direct evidence is not required Woman who worked in a male dominated field treated differently rebukes denial of privileges sex related slurs disciplinary repercussions and finally fired after a male coworker physically assaulted her A plaintiff need only present sufficient evidence for a reasonable jury to conclude by a preponderance of the evidence that race color religion sex or national origin was a motivating factor for any employment practice 2000e2m A motivating facto internal mental state implicit stereotypes or other in uenced social perceptions judgment and action The characteristic gender must serve as the stimulus which led the decision maker to behave toward the person differently than he otherwise would Court mentions word demonstrate in text of statute Risk in mixed motive if they can prove legal motive then you aren t getting your job back or back pay Risk in single motive if you lose you get nothing and lawyers get nothing If you win then Individual Dispz lte Treatment Discrimination Examples 1 2 3 Example P alleges she was fired by employer who told her that women don t make good employees Direct evidence and single motive If what she said is true then that s discriminatory and P will win Direct evidence of the employer s intent to discriminate against women If D could prove that it was never said then they win Same as 1 except the employer s defense was that the P was discharged because of excessive absenteeism This would be a direct evidence and mixed motive case If P proves that statement was made then employer is liable PingPong 9 legitimate nondiscriminatory reason Employer burden is to prove LNR defense by a preponderance of the evidence If employer can t prove excessive absenteeism then P will get full remedies P alleges she was fired because of her sex no direct evidence same employer defense as 2 She will put on a prima facie case D will give a LNR and then she will have to prove that reason is pretext use comparator examples by the company that a male was treated differently Under Title VII and 1981 you can be reinstated if you win Sec 623a1 It shall be unlawful for an employer to fail or refuse to hire or discharge any individual or otherwise discriminate against any individual with respect to his compensation terms conditions or privileges of employment because of such individual s age 2 to limit segregate or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee because of such individual39s age or 3 to reduce the wage rate of any employee in order to comply with this chapter Turner says also use 703k for age discrimination under Title VII for disparate impact claim 14 Gross v FBL Financial Services US SC 2009 P introduced evidence suggesting that his reassignment was based at least in part on his age D contended that it was just corporate restructuring and the new job was better suited to his skills 0 Issue Did the P have to present direct evidence of discrimination in order to get the mixed motive jury instruction in a nontitle VII case Court didn t decide direct or indirect evidence but focused on mixed motive issue 0 Burden shifting framework of Title VII does not apply to ADEA claims Court held that the ADEA does not authorize a mixed motive age discrimination claim Text of ABBA says that the employee cannot suffer adverse treatment because of age A P must prove that age was the butfor cause of the employer s adverse decision 0 1991 civil rights act amendment s motivating factor provision 703m does not apply to ADEA 0 DISSENT the butfor cause standard accepted in this case was the standard in the Kennedy s dissent to the Price Waterhouse case The words because of do not require a showing of butfor causation Thinks that Price Waterhouse governs ADEA claims Title VII 703a an to discriminate against any individual because of such individual s race color religion sex or national origin Title VII 703m an is established when the complaining party demonstrates that race color religion sex or national origin was a motivating factor for any employment practice even though other factors also motivated the practice 0 Only mentioned race color religion sex or national origin and does not mention retaliation at all Title VII 704a the antiretaliation provision it is an unlawful employment practice to discriminate against an employee or applicant because he has opposed any practice made an unlawful employment practice by this title or because he has made a charge testified assisted or participated in any manner in an investigation proceeding or hearing under this title 0 Missing the words race color sex religion national origin 0 You can lose a substantive claim and win a retaliation claim Univ of Texas Southern Med Center v Nassar US SC 2013 Nassar believed his boss was discriminating against him because of his ethnicity and religion Middle Eastern Retained his job as a doctor even though he quit working at the university In resignation letter he complained all about his boss So one of the supervisors at the university made sure he did not get the job at the hospital because it was against their agreement He brought discrimination claim and a retaliation claim 0 Employee who alleges status based discrimination 703 does not need to show but for causation Instead the P can show that the motive to discrimination was one of the employer s motives even if they had other lawful motives that were causative in the decision mixed motive approach under 2000e2m 0 Issue Does this lesser causation standard also apply to retaliation discrimination 704a It is unlawful for an employer to take adverse employment action against an employee because of certain criteria then says the 5 criteria race color religion sex and national origin Court says this indicates that congress wanted to confine the 703 s provision s coverage to only these types of employment practices Therefore Title VII retaliation claims must be proved according to traditional principles of butfor causation This requires 15 proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action of the employer 0 Held 0 CBOCS GomezPerez Jackson Price Waterhouse not controlling Judge claims he s trying to root out frivolous claims 0 Ginsburg Dissent retaliation is a manifestation of statusbased discrimination They re not completely separate Individual Disparate Treatment Discrimination Special Issues of Proof 0 The Same Actor Rule courts have sometimes dismissed a P s discrimination charge when the person who hired the P was also the person who discharged him relatively soon after the hiring decision inference 0 Same Supervisor Rule Another situation arises when the P attempts to bolter her case by adducing evidence of discrimination against other members of her class called the me too evidence There is resistance to this evidence when it was by a different supervisor than the one accused of discriminating against the P 0 With ADEA claims some courts have required replacements to be significantly younger than the P before age discrimination can be inferred One court ruled 8 years was enough but 7 was not 7th Circuit usually wants a 10 year age gap 0 With Sex and Race cases the P does not have to prove that they were replaced with someone out of their relevant class This doesn t mean it s not probative EX woman fired and replaced with another woman Could still be discriminatory Systemic Disparate Treatment where an entire group is treated differently because of their raceseXreligionagenational origin etc Can be proven in two ways 1 The P may simply demonstrate that the employer has an announced formal policy of discrimination 2 The P who fails to prove a formal policy may nevertheless establish that the employer s attern of em lo ment decisions reveals a ractice of dis arate treatment exists see PampP anal sis above Los Angeles Department of Water and Power v Manhart US SC 1978 city department had retirement disability and deathbenefit program from which they would take some out of your pay check each month Because women live longer than men the department required contributions of them 1484 higher Because the contributions are taken out of their paycheck the women took home less pay than a male employee earning the same salary 0 Employment decisions cannot be based on stereotyped impressions Even where a generalization is true about a class it is an insufficient reason for disqualifying an individual to whom the generalization does not apply For instance some women will die before men and some men will live longer than the average While these women were working they will be receiving smaller pay checks and receive no compensating advantage when they retire 0 Court held the department practice violated Title VII but the court did not apply it retroactively to the pension plan so the Ps won but took nothing Cost Justification defense does not work in Title VII claim 16 Employer motivation is irrelevant if they intend to treat women differently than men Animus doesn t matter Doesn t matter if their motive is good or neutral statute does not require any employer to grant preferential treatment to any individual or group because of the race color religion sex or national origin of such individual or group on account of an imbalance with respect to the total number or percentage of persons of any race color religion sex or national origin employed by any employer Look to 0 Underrepresentation 0 Observed number employees employed by the employer in a protected category 0 Expected number derived from the demographics of a relevant labor market what the area would demographically look like absent discrimination mainly works for unskilled jobs 0 Need to know the on staff of that group internal number and compare it to an outside number usually the relevant labor market like schoolteachers Look for a large gap go through systemic disparate impact claim observed number v expected number then analyze facially neutral practice that causes the discrimination employer comes back with job relatedness and BFOQ then P can prove alternate practice 0 We can also try to go through and use pattern and practice underrepresentation inference of disparate treatment 9 employer has to rebut Twostep but don t have to do anything else for disparate treatment Can also go into individual claims So we can go through 3 things disparate impact PampP and ind disparate treatment For Unskilled Jobs Teamsters v US US SC 1977 claim was that the company had engaged in a pattern or practice of discriminating against minorities blacks and spanish who had been hired Were given lower paying less desirable jobs as servicemen or local city drivers and were discriminated against with respect to promotions and transfers Line drivers make more and those jobs were mainly given to whites 0 Harder to prove that racial discrimination was the company s standard operating procedure as opposed to a singularindividual practice Statistical analysis individual testimony was enough to prove the government s prima facie case The D s rebuttal was held to be inadequate that statistics can never in and of themselves prove the existence of a pattern or practice of discrimination 0 Pattern of Practice claim discrimination was the company s standard operating procedure the regular rather than the unusual practice P must establish this by a preponderance of the evidence element of intent 0 The Central Assumption court thinks that over time a work force will look like the population Assumption is that if the employer doesn t use discrimination then the work force will look like the surrounding population Is still valid but has been challenged 0 Inexorable Zero where the employer has 0 or close to 0 employees of that protected case these are winning cases to prove prima facie case They compare the current employees to the labor market in that community where the employer draws people from Statistics can first show underrepresentation of the class Then the P must show the percentage of such individuals who would be employed absent such discrimination Then disparate treatment discrimination requires further finding that underrepresentation was the result of intentional discrimination Inferential Evidence of Systematic Discrimination 17 0 Plaintiff s prima facie case Plaintiff must prove by a preponderance of the evidence that the most likely explanation for the composition of the defendant s workforce is prohibited discrimination The plaintiff can do this by using statistics descriptions of the employer s practices and or anecdotal evidence supporting plaintiff s contention or regarding treatment of individual employees A Plaintiff must show by preponderance of the evidence that unlawful discrimination was the company s standard operating procedure the regular rather than the unusual practice Teamsters 0 The defendant can rebut the prima facie case in two ways 0 Attack the statistics showing discrimination defeat the prima facie case Hazelwood a Most often this is done by arguing over what is the relevant labor market Each side will want to use the statistics which are most favorable to them This can also be done by attacking the size of the sample This works much better with small employers 0 Give a legitimate nondiscriminatory reason for the disparity Sears a In rebutting the prima facie case the defendant needs to show more than good faith assertions that it acted correctly There must be more than an assertion that the defendant acted with a legitimate reason b Sears women don t want the jobs c Consolidated Systems I only use word of mouth advertising For Skilled Jobs Hazelwood School District v US US SC 1977 suit against school district for discriminatory hiring practices Pointed to statistical data which showed severe underrepresentation of African American teachers in the school district only around 2 compared with neighboring cities 15 Relies on statistic theory from Teamsters Evidence of long lasting and gross disparity between the composition of a work force and that of the general population may be significant even though 703039 makes clear that Title VII imposes no requirement that a work force mirror the general population Court held that the appellate court s decision in favor of the government was premature and that they should have considered the differences in the hiring practices before and after Title VII s passing in 1972 Do not compare black teacher ratios to black students 0 Relevant labor market look at time geography and skill 0 Then consider what is statistically significant 2 to 3 standard deviations indicates an unreasonable disparityfor our purposes look for a BIG gap indicative of discrimination Buttress evidence with specific instances of discrimination if possible Justice White wanted to use applicant pool data however people in the community might know that the company doesn t hire blacks so they don t even bother applying But this number might be more specific to the school than just using the surrounding area Justice Stevens thinks that the government should prevail because the school employer failed to rebut the prima facie case Wal Mart Stores v Dukes US SC 2011 whether to certify a class of about 1 12 million women workers claiming pay and promotion discrimination because of sex Is there commonality under FRCP for class certification under 18 systemic disparate treatment ie can the Ps show that there are questions of law or fact common to the class No class was not certified Can only bring case on behalf of all these women at once against Walmart if there was significant proof that an employer operated under a general policy of discrimination that could then justify a class of both applicants and employees if the discrimination manifested itself in hiring and promotion practices in the same general fashion such as through an entirely subjective decisionmaking process Sociologist claimed that the corporate culture contributed to gender bias Walmart s policy allowed for discretion of local supervisors over the hiring process However the court held such proof that Walmart operated under a general policy of discrimination is lacking Merely showing that WalMart s policy of discretion has produced an overall sexbased disparity does not suffice to tie together 15 million claims Ps would need to show a specific employment practice Of 3400 Walmart stores there are differences in availability of women qualification women interested in the jobs Three possible bases for commonality 1 An employer using employment tests 2 Having a general policy of discrimination or 3 A practice of discrimination even in the absence of an express policy teamsters a person can be presumptively in the class but then each person goes through a hearing to prove damage and to make sure that they really are in the class Three approaches to defending against a systemic disparate treatment case 1 Challenge the factual basis on which the P s case is predicated a Ex employer could deny that a formal policy exists or could challenge the facts on which the P s case is based 2 Challenge the inference of discrimination from which the statistics arise not the statistics themselves F eeneyS ears 3 Admit the discrimination but assert a recognized defense see BFOQ amp Voluntary Affirmative Action Rebutting the Inference of Discriminatory Intent Personnel Administrator v Feeney US SC 1979 unintended consequences for women when veterans were given absolute preference for state jobs and 98 of veterans were male Constitutional equal protection challenge Discriminatory purpose implies more than intent as a violation or intent as awareness of the consequences Discriminatory action had to be chosen because of or in spite of its adverse effect upon an identifiable rou Court upholds the preference as it was intended for both male and female veterans Meant to be a preference for veterans over nonveterans not men over women This was not brought as a Title VII claim because section 712 explicitly excepts veterans preference laws from attack under the statute 19 EEOC v Sears Roebuck amp Co 7th Cir 1988 EEOC challenged Sears s hiring promotion and compensation practices as systemic disparate treatment on the basis of gender Men were in higher paying sales jobs compensated by commission and women were in lower paying sales jobs paid by the hour EEOC used statistical evidence through employment applications and payroll records Favor of Sears 0 An employer may attempt to show that Plaintiff s proof is either inaccurate or insignificant or the employer may attempt to provide a nondiscriminatory explanation for the apparently discriminatory result 0 Sears rebutted with the testimony that women were not as interested in commission sales positions and men were not as interested in the hourly positions No specific instances mentioned Sears just claimed that there was more risks for the commissioned jobs and women were riskaverse and didn t want them 0 Also women had different qualifications than the men younger less educated less sales experience 0 Having offered a nondiscriminatory explanation for the apparently damning data Sears won because the EEOC failed to disprove their explanation Section 703e Title VII it shall not be an unlawful employment practice for an employer 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 bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise 0 Does not reach as far as race or color Very strict and narrow exception to Title VII 0 ABBA has a similar provision Western Airlines v Criswell had to not be over a certain age to be a ight engineer Court ruled that age was not a BFOQ for this positions If it s about health or heart attacks then the airline could just implement health checks or physicals 0 Statute has always permitted discrimination where age is a bona fide occupational qualification BFOQ is available as a defense only if it is reasonably necessary to the normal operation of the defendant s business In order to qualify as a BFOQ a job qualification must relate to the essence or to the central mission of the employer s business 0 Occupational indicates that these objective verifiable requirements must concern job related skills and aptitudes 0 Dothard v Rawlinson prison guards in contact positions had to be the same sex as the prisoners they were guarding Protection of women from male inmates 0 A BFOQ defense seems to work well in situations where personal privacy is at issue but it can t be a matter of customer preference Ex nursing homes school locker rooms dressing rooms public restrooms etc International Union UAW v Johnson Controls Inc US SC 1991 company announced exclusion policy of women working near lead their primary ingredient because of risk of harm to a fetus Fetal Protection Policy Ps bring a Title VII class action suit 20 Policy was facially discriminatory because it did not treat men and women s reproductive issues the same let men choose whether they were willing to risk their fertility being affected Also required women to submit medical documentation that she was incapable of reproducing 0 Also the court mentions the Pregnancy Discrimination Act that includes discrimination on the basis of sex and because of or on the basis of pregnancy Hle D s policy is sex discrimination unless they can establish that sex is a bona fide occupational qualification BFOQ is a very narrow defense Unless the pregnant employees differ from the others in their ability or inability to work pregnancy prevents her from performing her duties they must be treated the same as other employees for all employmentrelated purposes 0 An employer s professed moral and ethical concerns do not establish a BFOQ Disparate treatment analysis applies whenever an employer facially discriminated or acts on the basis of gender regardless of whether it is motivated by animus Occupationa means relating to the job and qualifications narrows it to that which affects the employee s ability to do the job In order to qualify as a BFOQ a job quali cation must relate to the essence or to the central mission of the employer s business Look for 1 overt discrimination and 2 the essence of the job Whether being male or female is a qualification for the job In this case no Dissent believes that a fetal protection policy could be justified under the terms of the statute if for example an employer could show that exclusion of women from certain jobs was reasonably necessary to avoid substantial tort liability When a BFOQ was allowed Healey v Southwood Psychiatric Hospital gender specific rule for assigning child care specialists at a hospital for emotionally disturbed children and adolescents allowed Expert testimony that males are better able to fill the role of parental role modeling than females This is like the prison case in that it was for the good and safety of a 3ml party Is customer preference a basis for establishing a BFOQ No Fernandez v Wynn Oil Co could held that D s argument that the P could not be made VP of international operations because Latin American clients would react negatively to a woman in such a position was not a BFOQ SW airlines only employed women as ight attendants at Love Field SW airlines lost the case to male ight attendants because there was no BFOQ Sexualized Business Hooters and Twin Peaks Essence people go to hooters for the food and the sex appeal Men sued because they weren t allowed to be waiters They got a settlement and then worked at the bar at Hooters Some customer preference is allowed women won t be given jobs at Chippendales and men can t dance at a female strip club Privacy BFOQs bedridden patients and caretakers are menmen and womenwomen But there are plenty of male gynecologists 21 affirmative action is allowed as a defense to discrimination only when it is a disparate treatment claim not disparate impact Allowed when it is meant to eliminate a manifest racial imbalance in a traditionally segregated job category pursuant to a plan adopted which establishes temporary goals in an underrepresented job area that does not unnecessarily trammel the rights of other A manifest imbalance can be shown with a statistical comparison between the actual number of employees and the number in the relevant labor market A manifest imbalance need not be such that it would support a prima facie case against the employer for systematic discrimination Not firing whites and rehiring them with blacks just hiring about half and half from then on in an industry that was previously hiring from a black excluded apprentice system United Steelworkers of America v Weber 0 703j of Title VII prevents an employer from hiring simply to achieve racial balancing Title VII has never worked well in high level jobs ie law firmsworks better in unskilled positions 0 Elements of a lawful raceconscious plans 1 designed to break down patterns of segregation and hierarchy 2 does not unnecessary trammel the interests of other groups look to see if it discharges or creates an absolute bar to advancement and 3 plan is temporary 0 Can t have a number because that s a quota Affirmative action is also allowed under the ADEA the young cannot be favored over the old but the old can be favored over the young pg 185 703al prohibits discrimination on the basis of race color etc 703039 bans preferential treatment based on work force demographics Justice Brennan says 703039 says you re not required to do it not that you can t do it ie use a voluntary affirmative action plan The Civil Rights Act of 1991 prohibited race norming which is changing or adjusting scores on work related tests based on race or sex Any test has to be validated therefore race norming shouldn t be an issue Johnson v Transportation Agency of Santa Clara County US SC 1987 D had adopted an affirmative action plan They had no female skilled craft workers out of 238 inexorable zero The agency plan set aside no specific number of positions for minorities and women but authorized the consideration of ethnicity and sex as a factor when evaluating qualified candidates for jobs in which members of such groups were poorly represented In this case there were 7 qualified candidates of which the employer could choose any of them 0 Was there a manifest imbalance and underrepresentation of women 0 Where a job requires special training or certain qualification the comparison should be with those in the labor force who possess the relevant qualifications Women were 364 of the labor market and only 224 of D s employees 0 The affirmative action plan is designed to attain and not maintain a balanced work force Therefore it wouldn t be okay to always maintain a 36 women work force 0 How to prove prima facie case that the employer took into account gender in their decision Employer then has to prove legitimate nondiscriminatory reason multitude of factors and hiring by virtue of an affirmative action plan P can then prove that the reason is pretextual an unlawful plan cannot be a LNR 0 Held the D appropriately took into account as one factor the sex of Diane Joyce in determining that she should be promoted over the other male applicant they were both pretty much equally qualified 22 0 Was Johnson unnecessarily trammeled No He did not lose his job All the candidates were qualified for the job Court says that the employer could have chosen any of the 7 candidates therefore he did not have any entitlement or right to the promotion 0 Dissent Scalia you can t discriminate even if you have a good reason Constitution Johnson could have brought title VII and equal protection clause claim It s harder to win an affirmative action claim under the constitution have to say something happened in the past which now needs a remedy Adarand 1995 the standard of review for any race based distinction is strict scrutiny Narrowly tailored to further compelling government interests The WeberJohnson Standard today not sure if it would pass today Piscataway case 3r01 circuit school district had to decide which teacher to lay off same qualifications exactly but they kept the black teacher Civil rights group paid the teacher to withdraw her claim because they thought she would win in the SC Parents Involved in the Community Schools v Seattle School District school districts were based on student choices but some schools were more popular So the tie breaker was to determine if the student had a sibling at a certain school and if they didn t then the school district looked to race and placed students in schools that were not within 10 of the over whitenonwhite racial balance 0 Schools cannot use race to place students It does not provide for meaningful individualized review of applicants but instead relies on racial classifications in a nonindividualized mechanical way Gratz v Bollinger Disparate impact discrimination arises when employment policies regardless of intent weigh more heavily on one group than on another and cannot be justified by business necessity Proof of discriminatory intent isn t required Systemic disparate impact discrimination applies under Title VII ADA and maybe under ADEA not definitive Disparate impact is not available under 1981 Always group disparate impact and pattern and practice cases together Title VII Sec 703a2 makes it unlawful to limit segregate or classify employees or applicants in any way which would deprive or tend to deprive them of employment opportunities or otherwise adversely affects his status as an employee because of such individuals race color religion sex or national origin 0 LE Can the court create a remedy where it has not been shown that an employer actually discriminated Can be unintentional discrimination or maybe unconscious discrimination 0 Almost identical provision under ADEA because of age Griggs v Duke Power Co US SC 1971 Issue whether an employer can require a high school education or passing of a standardized general intelligence test as a condition of employment under Title VII whenever a neither standard is significantly related to successful job performance b both requirements operate to disqualify blacks at a higher rate than whites and c the jobs in question formerly had been filled by only white employees as part of a long standing white preference 0 As soon as the company abandoned its policy against blacks with the passing of the civil rights act of 1964 the company instituted the new education requirements Blacks were only hired in the labor department 23 0 Court of appeals held that in the absence of a discriminatory purpose such requirements were permitted by the Act Congress did not intend by Title VII to guarantee a job to every person regardless of qualifications 0 SC the Act proscribes against overt discrimination and practices that are fair in form but discriminatory in operation If an employment practice which operates to exclude Negros cannot be shown to be related to job performance the practice is prohibited 0 Procedures neutral on their face and even neutral in terms of intent cannot be maintained if they operate to freeze the status quo of prior discriminatory employment practices 0 SC says that good intent or absence of a discriminatory intent does not redeem employment procedures or testing mechanisms that operate as built in headwinds for minority groups and are unrelated to measuring job capabilities 0 IFrom Griggs we know that if a particular selection device has a greater adverse impact on African American workers than whites they are presumptively inadmissible D can then attempt to show why the device is justified Burden of proofproduction is on the D Employer must show that any given requirement must have a manifest relationship to the employment in question Sec 703h Wards Cove Packing Co v Atonio US SC 1989 Cannery jobs are unskilled and usually worked by Filipinos and Alaskan natives Noncannery jobs are skilled positions and usually filled by white workers Noncannery jobs pay more than cannery jobs The two jobs also eat in separate mess halls and live in separate dormitories Respondents brought suit under Title VII 0 Proper comparison of workers is between the racial composition of the atissue jobs and the racial composition of the qualified population in the relevant labor market Court says they should not compare one segment of the employer s work force to another as long as there are no barriers or practices deterring qualified nonwhites from applying for noncannery positions 1 ORDER Causation in a disparate impact case P has to isolate and identify the speci c employment practices that are allegedly responsible for any observed statistical disparities Can t just show that at the bottom line there seems to be disparity This is an integral part to proving a P s prima facie case 2 After a prima facie case is shown the D can offer any justification for their use of the practices and then the court will look at the availability of alternative practices that could achieve the same result with less racial impact No requirement that the practice be essential or indispensable Does the challenged practice serve a legitimate employment goal of the employer Burden of persuasion still remains with the P Only burden of production is on the D 3 Then P could attempt to show that the employer s legitimate hiring interest and their tests were merely pretext Can the Ps show an alternative practice to the one challenged Smith v City of Jackson US SC 2005 Police and public safety officers employed by the city claim that salary increases violated the ADEA because they were less generous to officers over the age of 40 than to younger officers Issue Whether the disparate impact theory of recovery announced in Griggs for cases brought under Title VII is cognizable under the ADEA 0 ADEA does authorize recovery in disparateimpact cases comparable to Griggs just not in this case In this case workers did not point to any specific test requirement or practice within the pay plan that had an adverse impact on older workers Court said the pay plan was not a practice Therefore petitioners did not make out a prima facie case of causation 24 0 The city s plan was based on pg 206 Its purpose was to make their department competitive Held employer must produce evidence supporting RFOA affirmative defense and persuade the factfinder that the defense has merits burden of persuasion 0 Justice Stevens thinks intentional discrimination on the basis of age is less of a problem than race or gender So that s why they consider RFOA Meacham v Knolls Atomic Power Lab US SC 2008 ADEA creates an exemption for employer actions otherwise prohibited but based on reasonable factors other than age Issue does the employer have to produce evidence of the RFOA defense and persuade the factfinder of its merit YES they have to do both 0 Knolls had to lay people off The company told their managers to score workers on three scales performance exibility and critical skills Of the 31 employees laid off 30 of them were at least 40 years old 28 of them sued claiming that their results were skewed because of their ages 0 Court holds RFOA should be treated like the BFOQ defense Wards Cove was superseded by the Civil Rights Act can still use relevant labor market v at issue jobs across cases that are outdated But use 703k If you use Wards Cove for any reason make sure you go back into the statute For disparate impact use 703k of the Civil Rights Act of 1991 Title VII was amended in this Can also use Teal for doctrine even though the case was decided prior to 1991 703 k new statutory action added to Title VII for disparate impact discrimination in part supersedes Wards Cove Page 217 The term demonstrates means to meet the burdens of production and persuasion 0 Sec 703k1Ai provides that the P carries the burden of persuasion that the employer uses a particular employment practice that causes disparate impact on the basis of race color religion sex or national origin and that the employer fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity 0 The touchstone for the employer s defense is business necessity Employer must show that practice is related to job performance has manifest relationship to the employment in question 0 Sec 703A1Aii Or plaintiff demonstrates the alternative employment practice and the employer refuses to adopt such alternative employment practice 0 P has the burden of showing another way for the employer to achieve their objective with a less discriminatory impact on a certain group Has to be equally effective cost is allowed to be a consideration P would have to develop the alternative and litigate so no one really foes this anymore 0 Sec 703k1C Alternative employment practice in accordance with the law as it existed on June 4 1989 aka prior to wards cove 0 Sec 703 k1Bi Plaintiff has to demonstrate that each particular employment practice causes a disparate impact Sec 703k1Bii Where the P demonstrates to a court that the elements of a decision making process are not capable of separation for analysis the decision making process may be analyzed as one employment practice Basically arguing that you can t unbundle it 25 plaintiff must demonstrate prod amp pers that there is an employment policy which adversely impacts one group of employees more than another Sec 703klAi The plaintiff proves that the practice impacts one group more harshly by showing statistical disparities in the employer s workforce or if a test is used that the protected group has less than fourfifths the passage rate of the rest of the applicant pool or workforce a If it is more than one employment practice the plaintiff must separate out the discriminatory employment practice individually Sec 703 klBi To look at the process as a whole the plaintiff must prove that the practices can t be separated for analysis Sec 703klBii bundling v unbundling b Passive reliance on a method of recruitment may or may not be an employment practice See pg 395 c Bottom line numbers of employees are not a defense to disparate impact Teal Watson v Fort Worth Bank amp Trust US SC 1988 Watson black was hired by the Bank She kept applying to be promoted to supervisor but was always unsuccessful The bank has no precise and formal criteria for evaluating candidates for the positions Instead the bank relies on the opinions of the supervisors who knew the candidates and the nature of the jobs to be filled 0 Court held that subjective or discretionary employment practices may be analyzed under the disparate impact approach in appropriate cases Just because the bank s practice was facially neutral does not mean that the supervisors did not act with discriminatory conduct a lot of money for black to have to count 0 Court is concerned that supervisors exercising discretion may act with discriminatory intent Note Wal Mart If you see a facially discriminatory practice don t use 703 Only if it is facially neutral then use 703 What about word of mouth recruitment and passive employment practices Can that be disparate impact Court said it can t be disparate impact because it s not a practice and is passive employer not actively going out into the marketplace to find workers However this form of recruiting seems to be a practice to me Court says it s better to use this method cause employees who bring you interviewees they know and who they think would be good for the job 703 would not apply in a case like this The volitional exception to disparate impact discrimination ex Garcia v Spun Steak Co bilingual employees required to speak English at work Court held that it was immune from disparate impact on Mexican origins attack because bilingual employees could comply with the rule and thus could avoid discipline if they wanted Another case ruled in favor of Hispanics in regards to an English only policy because it created a hostile work environment Maldonado v city of altus Connecticut v Teal US SC 1982 Whether an employer sued under title VII can assert the This is whenever an employer s acts of racial discrimination in promotions effected by an examination having disparate impact would not render the employer liable for the racial discrimination suffered by the employees barred from promotion if the bottom line result of the promotional process was an appropriate racial balance 0 Court holds that the bottom line does not preclude employees from establishing a prima facie case nor does it provide employer with a defense Title VII was meant to ensure that individuals had the same opportunity to compete equally on the basis of job related criteria not only that the bottom line of racial equality was met 26 0 In this case there was an examination given to those who wanted promotions The four black respondents in this case failed the exam and were no longer considered for the jobs Court says Title VII roots out arti cial arbitrary and unnecessary employercreated barriers to professional development that have a discriminatory impact Therefore the employer would have to prove that the test measured skills related to effective performance 0 Court Sec 703 a2 protects individuals rather than the minority group as a whole 0 The bottom line may be a defense in intentional discrimination cases see F urnco Every individual is protected against disparate treatment and disparate impact 0 Dissent disparate impact cases consider whether the results of an employer s total selection process had an adverse impact upon the protected group not just the individual In this case 229 of blacks were promoted and only 135 of whites Therefore they cannot say that the selection process has an unfavorable disparate impact on blacks Choice of Labor Market as a Particular Practice town had a resident s only rule which had a disparate impact because the town was mostly white and the neighboring town was mostly black NAACP Newark branch v Town of Harrison Allowed to be considered A that states that applicants must live in a certain town city county etc in order to be considered for employment is a facially neutral requirement it applies to all individuals without regard to race sex etc Given residential and housing segregation the requirement can operate in ways excluding from employment consideration certain groups who live outside the covered area thereby resulting in a prima facie case of disparate impact So a residency requirement in an allwhite town or city such as the one in the practice problem can adversely affect those living in adjacent areas who would like to pursue the employment opportunity but cannot because they live outside the area covered by the requirement The residency policy is facially neutral its impact on groups protected by Title VII may be adverse for Title VII purposes give rise to a disparate impact suit Dothard v Rawlinson US SC 1977 Section 703gk21121A21i requires that the P prove that the employer uses a particular employment practice that causes a disparate impact P was denied employment because she failed to meet the minimum 120 pound 5 2 requirement established by Alabama statute Does this facially neutral standard work in fact to disproportionately exclude women from eligibility for employment by the Alabama board of correction 0 Women only compose 129 of the correctional counselor positions The 5 2 requirement operates to exclude 3329 of the women in the US between 1879 while excluding only 128 of men Weight would exclude 2229 of women and only 235 of men 0 Court held that due to these facts Rawlinson made out a prima facie case of unlawful sex discrimination Appellants then rebutted and claimed that the requirement were jobrelated They say they have a relationship to strength which is essential to good job performance Court said that if the job related quality is bona fide their purpose could be achieved by adopting and validating a test for applicants that measures strength directly Strength test would have to be validated by the court otherwise you can get sued again Dothard approved general population statistics instead of application ow but this has not been consistent The Quantum of Impact to cause disparate impact one must first show what is disparate Some courts require statistical significance to make out a prima facie case Sample size ranging from 3 to 7 was too small Rather than 27 looking at the impact courts will look to the amount of impact Agencies will not challenge a rule that is not substantial 45 or 80 of the rate for the group with the highest rate 1 Rebutting show of disparate impact 2 Proving that the practice is job related and consistent with business necessity under 703k 3 Practice is a professionally developed test 4 A bona fide seniority system or a 5 Bona fide merit and piece work system P has the burden of persuasion to prove a prima facie case And D is allowed to introduce evidence that the P s statistics are wrong The D does not carry the burden of persuasion when merely attempting to undermine the evidence the P uses to establish a prima facie case D has the burden of persuasion when proving business necessity and jobrelatedness the employer offers this and has to use both Job related the narrow view is confined to showing that the performance of the employee on the job is affected This view looks to specific requirements for the specific position and may require the employer to provide empirical evidence that the practice is job related The more expansive view adopted by the 5th and 10th Cir does not require the employer to offer empirical evidence Business necessity the narrow view requires empirical evidence supporting a more tailored connection between the policy and the employer s justification The more expansive view is to take into account factors not directly related to employee performance on a particular job This view focuses on either the workplace or the industry and may take into account the cost of not having the policy Use of a neutral 3rd party s comments on job requirements can help enormously Fitzpatrick requirement of clean shaven faces of firemen so that breathing masks will seal Type of J ob 10th Cir when a job requires a small amount of skill and training and the consequences of hiring an unqualified applicant are insignificant the courts should examine closely any preemployment standard or criteria which discriminates against minorities On the other hand when the job clearly requires a high degree of skill and the economic and human risks involved are great the employer should bear a lighter burden to show that its employment criteria are job related El v SEPTA 3d cir 2007 P claimed that D bus service for the physically and mentally handicapped unnecessarily disqualifies applicants because of prior criminal convictions a policy that he argues has a disparate impact on minority applicants under Title VII because they are more likely than white applicants to have convictions on their records D used the business necessity defense and court affirmed in favor of D because the P did not present evidence to rebut D s expert testimony D required employees to not have record of violent criminal convictions but P has a 47 year old conviction for 2 degree murder for which he served 3 12 years in prison Court has held that hiring criteria for business necessity must effectively measure the minimum qualifications for successful performance of the job in question However hiring policies need not be perfectly tailored to be consistent with business necessity So the court holds that employers must show 28 that a discriminatory hiring policy accurately but not perfectly ascertains an applicant s ability to perform successfully the job in question 0 Issue the risk of potential harm to passengers This kind of case is different because the employer is trying to assess risk to those people riding their buses not whether or not the P can drive a bus But still the policy under review accurately distinguishes between individual applicants that do and do not pose an unacceptable level of risk and those that do not 0 There was expert testimony that those who have committed violent crimes are more likely to commit them in the future compared to the general public and that disabled people are proportionately more likely than others to be the victims of violent or sexual crimes The employer s expert was not deposed by El and there was no plaintiff s expert 0 Court holds that a reasonable juror could necessarily find that the D s policy is consistent with business necessity The policy is also facially neutral because it does not mention race at all Job Related focused on El s driving the bus Business Necessity focused on safe transportation of passengers which related back to E1 The statute mixes these together Arrest Records Only certain people of color get arrested more frequently not convicted Can t make an employment decision on the basis of an arrest record because a person may not have done it if the defendant can prove that the practice is job related and consistent with business necessity the employee still has a chance to win The P must then prove that there is an equally effective alternative employment practice available and that the employer refuses to adopt it and therefore is using the other practices as a pretext for discrimination Title VII 703klAii disparate impact violations can exist even if the employer s successful proof of job relation and business necessity when the Plaintiff makes the demonstration with respect to an alternative employment practice and the employer refuses to adopt such alternative employment practice If an alternative practice costs more then it is not considered equally effective Adams v City of Chicago 7th Cir 2006 Black and Hispanic police officers challenge examination used to promote officers to sergeants and the promotions made based on the examination scores Parties agreed that the examination and ranking had a disparate impact on minorities Officers argue that the Chicago should have instituted a merit component for the promoting officers to sergeant which refers to officers on the job performance as rated by their supervisors This was recommended in a task force evaluation of the promotional process in 1998 The Plaintiffs officers bear the burden However the officers could not show that the process for evaluating officers of their merit for promotions to sergeant was available in 1997 because it was not recommended until 1998 0 Also the statutory scheme requires the Plaintiffs to demonstrate that a viable alternative was available and that the employer was given the opportunity to enact it In 1997 Chicago had no opportunity to enact the argued alternative 0 Judge William s Dissent jury could have concluded that the city could have used the merit promotions proposal Notes Fitzpatrick v City of Atlanta 1 1th Cir 1993 firefighters with medical conditions required to shave alternative employment practices that are looked at studied ready and prevent discrimination can be used 29 can be used for both individual disparate treatment and systemic disparate impact But usually the tests will be used for impact cases Title VII offers three statutory defenses in disparate impact cases 1 professionally developed employment tests 2 bona fide seniority systems and 3 bona fide merit systems I Professionally Developed Employment Tests notwithstanding any other provision of Title VII it shall not be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test its administration or action upon the results is not designed intended or used to discriminate because of race color religion sex or national origin Albemarle Paper Co v Moody US SC 1975 Plant with 650 employees converts raw wood into paper products It is organized into lines with the theory that workers can move up the line as they acquire the necessary skills Top jobs on certain lines require more skills than other unskilled lines For skilled line jobs the company uses the Beta test and the Wonderlic test which test nonverbal intelligence and verbal intelligence 0 Tests are facially neutral but Ps challenge that the tests have a disparate impact on the lower ranks primarily black They just use the average score for the cutoff point The employer had never validated the test so they tried to validate it 4 months before trial 0 Court held that discriminatory tests are impermissible unless shown by professionally acceptable methods to be predictive of or significantly correlated with important elements of work behavior which compromise or are relevant to the job or jobs for which candidates are being evaluated 0 Court said that the study for the tests Albemarle did was materially defective because the exams do not correlate for all the workers not accurate representation A test for the top of the line employees is not a permissible measure of the minimal qualifications of new workers entering the lower level jobs Also there were no uniform standards among the supervisors conducting the validation 0 A test is not technically validated until the court says that it is It is important that the test is of the minimum required to be proficient on the job 7031b How can a test be validated Page 262 1 Criterion related validation general criterion selected is some aspect of performance on the job Used most by employers Ex if a job analysis reveals that good job performance required good vision good hearing or motor dexterity the employer can devise tests for those skills and validate them by comparing test performance to job performance a Concurrent Validation as compared to predictive criterion validation the basic difference is that the current employees are tested and the tests are validated by comparing the test results to job performance ratings Less reliable 2 Construct related validation requires testing expert to analyze the job and construct a test that she thinks will measure traits necessary for success on the job Appropriate for traits more abstract than those subject to criterion related validation Like intelligence mechanical comprehension and verbal uency a The one that is disliked the most and subject to the most challenges as to validation 3 Content validation uses a sample of the work done on the job as a test If the sample is really representative of the job success of the test necessarily implies success on the job Title VII Sec 7031 You can t ignore scores on a test It is unlawful for an employer in connection with the selection or referral of applicants or candidates for employment or promotion to adjust the scores of use different 30 cut off scores for or otherwise alter the results of employment related tests on the basis of race color religion sex or national origin Would have allowed awed tests to stay in circulation because employers would just fix the scores instead of creating a better test Bryant v City of Chicago 7th Cir 2000 Ps are 44 AA and Latinos who failed to be promoted to lieutenant after taking the 1994 police lieutenant examination Of the 108 officers promoted that year based on the examination scores 5 were AA and l was Hispanic 6 The 1994 examination had a disparate impact on minority candidates and the parties claim that the statistical evidence constitutes a prima facie case of discrimination 0 District court held that the 3 part test formulated by Dr Barrett was content valid Ps argue that it is not and that his testimony should be inadmissible and is not sufficient to justify examination on which minorities fared so poorly Court holds that the test was proper and is validated 0 Court holds that Dr Barrett s testimony is allowable under Daubert because it had a reliable basis in the knowledge and experience of the relevant discipline In this case there is no claim that the examination is pretext only that the examination did not approximate the work situation But Griggs made clear that employment tests with a disparate impact are acceptable as long as they are demonstrably a reasonable measure of job performance 0 In evaluating the examination for content validity the court must consider 1 the degree to which the nature of the examination procedure approximates the job conditions 2 whether the test measures abstract or concrete qualities and 3 the combination of these factors ie whether the test attempts to measure an abstract trait with a test that fails to closely approximate the working situation 0 The rank and cutoff score there were 108 positions available so the highest scoring 108 candidates got those positions Employers particularly in the public sector have learned the importance of a job analysis prior to attempting to validate a test Once the test is prepared then you choose what validation strategy should be used If you get a bad awed test and throw it out you might be exposed to liability for disparate treatment Ricci case There aren t as many of these claims now because cities used to get sued all the time I Bona Fide Seniority Systems under 703h provides an exception to Title VII liability for seniority systems it shall not be an unlawful employment practice for an employer to apply different standard of compensation or different terms conditions or privileges of employment pursuant to a bona fide seniority or merit system provided that such differences are not the result of an intention to discriminate because of race color religion sex or national origin The lockin effect of prior discrimination Seniority systems tends to reify the status quo by preferring more senior workers to ones hired more recently Where racial or gender discrimination had been common in the past seniority systems tended to freeze that status quo 703h seniority system can only be overturned if it was put in place to intentionally discriminate This is a question of fact not a question of law While there is no special test for seniority systems the SC has held that a seniority system that perpetuates the effects of preact discrimination can t be bona fide if an intent to discriminate entered into its very adoption Swim Even though there is no test the following four factors are helpful 1 Whether the system operates to discourage all employees equally from transferring between seniority units 2 Whether the seniority units are in the same or separate bargaining units 3 Whether the seniority system has its 31 genesis in racial discrimination 4 Whether the system was negotiated and has been maintained free from any illegal purpose Thurow s Zero Sum Society Equal Opportunity a fair race Who doesshould pay the price for eliminating discrimination The mere perpetuation of earlier discrimination does not make seniority provisions illegal see Teamsters I Bona Fide Merit and Piecework Systems 703h sets forth an exception to disparate impact liability for bona fide merit and piecework systems it shall not be an unlawful employment practice for an employer to apply different standards of compensation or different terms conditions or privileges of employment pursuant to a bona fide merit system or a system which measures earnings by quantity or quality of production provided that such differences are not the result of an intention to discriminate Systems that measure compensation by quantity of production are piecework systems the more a worker produces the more he or she is paid This incentive system is one type of merit system A system that measure compensation by quality of production may also be part of a piecework system in the sense that rejects do not count for pay A quality of production system might be broader in that it involves the evaluation of the quality of worker performance The basic sense of this exception is that better job performance is rewarded Make sure to keep analysis distinct Baylie v Federal Reserve Bank of Chicago 7th Cir 2007 class action case where employees accused the D of race sex and age discrimination Two employees remain for decision as if the class continued to seek systemic relief even though the D was granted summary judgment in regards to the class action Ps rely on the report of an expert who said black employees were less likely to be promoted than white employees whites had a 27 probability of being promoted and blacks had a 20 probability of being promoted when the average was 25 D maintains that statistical evidence is never relevant outside a class action or suit by a public agency on behalf of the group 0 P has to prove that it s more likely than not that they were discriminated against based on race Court says that statistical analysis is relevant in the technical sense that it has the tendency to make the existence of a material factmore probable or less probable than it would be without the evidence However data showing a small increase in the probability of discrimination cannot by itself get the P over the more likely than not threshold Must be couple with other evidence Therefore the use of steiistics in an individual disparate treatment case is Mgned a very limited role Statistical evidence is at most a tiebreaker Easterbrook talks about the loss of an opportunity and the loss of a chance 32 Civil rights act of 1991 and Title VII An intentional discrimination case but not disparate impact case are entitled to a jury trial Compensatory and punitive damages back pay you didn t get while you were illegally fired and front pay amount you would have gotten before you retired and equitable relief are all available EEOC v Dial Corporation 8th Cir Dial has a Work Tolerance Screen not content or criterion validated EEOC brought sex discrimination case against Dial on behalf of 54 women who had applied for work but were not hired District court held that there was intentional discrimination and the use of a preemployment strength test had an unlawful disparate impact on female applicants 0 The amount of women hired after the strength test was implemented went from 46 to 15 Dial claimed that the test is a business necessity because it drastically decreased the number of injuries in the sausage production area of the plant Not a business necessity because the test was harder than the job 0 Court says that the practice of intentional sex discrimination must be shown by proving regular and purposeful discrimination by a preponderance of the evidence Statistical disparities are significant if the difference between the expected number and the observed number is greater than two or three standard deviations Hazelwood v US Despite knowing that less and less women were being hired Dial continued to use the test 0 Court holds that the evidence is sufficient for a reasonable jury to have found there was a patternand practice of intentional discrimination against women even though the test was facially neutral When an employer adopts a policy that is likely to result in disparate treatment by coworkers it can be viewed as having a disparate impact even if the employer does not wish for such consequences to follow Maldonado v City of Altus Proof of impact Dial and Maldonado cannot only make out the P s disparate impact case thus shifting to the defendant the burden of persuasion but also be evidence in the P s systemic disparate treatment case With regards to the latter however it will rarely be sufficient by itself to create a jury question of intentional discrimination Joe s Stone Crab only men were servers for fine dining restaurant cause of the old world tradition Hired 108 males and 0 females EEOC filed charge Employer Reputation is not a specific practice practice has to cause disparate impact Studies show upper class restaurants tend to favor men as servers observed disparity is result of intentional discrimination 0 What happen if PampP causes disparate impact 0 Segar v Smith city hiring unskilled workers City demographic is 99 white and city work force is 99 white Observed number and expected number is the same P s prima facie But if you look at the entire area that is relevant it is 40 minority then there s a huge gap 0 City s Rebuttal use methodology for 99 Applicant must be a city resident when they apply for a job turns it into a disparate impact case because it s not facially neutral 0 Is this is a disparate impact case is there a prima facie case is it job related or business necessity Disparate impact observed disparity discriminating effects against one protected group is result of facially neutral employment practices that are not job related and consistent with business necessity Proof of motive is not required Does not apply to sec 1981 claim Explanatory Defense page 290 33 Intentional Disparate treatment everybody is the same so you can t treat them differently Individual claims use direct evidence circumstantial evidence single or mixed motive Pattern amp Practice claims Disparate Impact people aren t the same so you have to take account of differences Involve facially neutral employment practices Griggs Wards Cove Civil Rights Act of 1991 Ricci v DeStefano US SC 2009 city threw out firefighter test results because whites outperformed minorities Test would have been the basis for promotions down the line which are very competitive White and Hispanic firefighters who would have been promoted based on good performance sued the city for disparate treatment court concludes that racebased action like the cities is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that had it not taken the action it would have been liable under the disparate impact statute This standard is now adopted as a matter of statutory construction imported from equal protection clause cases dealing with affirmative action claims Court holds that the respondent cannot meet this threshold and so rules in favor of the Ps 0 City paid 100000 for really meticulous and well writtenoral test providing for a multitude of factors including oversampling of minorities in the force The company specializes in designing entrylevel and promotional examination for fire and police departments 0 Court says there was no evidence that the tests were awed fear of litigation alone cannot justify an employer s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions 0 Prima facie case of disparate impact White Pass rate 64 blackHispanic pass rate 375 apply the EEOC s 80 rule Having a prima facie case does not constitute a strong basis in evidence of liability Court s premise the city s actions would violate the disparate treatment prohibitions of Title VII absent some valid defense The city chose not to certify the examination because of the statistical disparity based on race The city rejected the test results solely because the higher scoring candidates were white 0 The question is not whether that conduct was discriminatory but whether the city had a lawful justification for it race based action Court does not agree with the respondent because to do so would be to employ a minimal standard that could cause employers to discard the results of lawful and beneficial promotional examination even where there is little if any evidence of disparate impact discrimination Court does not want to emphasize statistics and start obtaining employer s preferred racial balance through some kind of quota system If an employer cannot rescore a test based on the candidates race 2000e2l then it follows a fortiori that it may not take the greater step of discarding the test altogether to achieve a more desirable racial distribution of promotioneligible candidates absent a strong basis in evidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate impact provision The city s examination is in line with the bona fide promotional examination defense page 298 Also the examination was clearly job related and consistent with business necessity as seen through the fact pattern 34 0 Ginsburg Dissent she would want the employer to have a good cause to believe that the test was not JRBN not the strong basis in evidence standard She thinks the case should have been remanded not summary judgment What does a strong basis in evidence require 6 gt Case after Ricci United States v Brennan tried to explain a strong basis in evidence of nonjob relatedness or of a less discriminatory alternative requires more than speculation more than a few scattered statements in the record and more than a mere fear of litigation but less than the preponderance of the evidence that would be necessary for actual liability Prohibitions of Title VII and the ADEA are directed at employers employment agencies and labor organizations Who can be considered an employer Under Title VII this is a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year and any agent of such person ADEA is phrased identically except that they must have 20 or more employees An employee is a person employed by an employer The critical question is what constitutes The term is not covered by Title VII or ADEA Courts have to determine where the employment begins and where it ends Lerohl v Friends of Minnesota Sinfonia 8th Cir 2003 Ps lawsuit was dismissed upon summary judgment because the court determined that they were not employees of the D but were instead independent contractors Musicians who played in symphony orchestra 0 Appellate court agrees and deems the Ps to be independent contractors When determining whether a hired party is an employee the SC looks at the general common law of agency Long list on page 315 The SC repeatedly emphasizes that no one factor is determinative and all aspects of the relationship must be considered 0 Control alone cannot constitute employment Ex are we supposed to hold that volunteer firefighters or volunteer rescue workers become employees because the fire chief or the head of the rescue squad direct them 0 The key distinction in a case like this is whether the musicians retained the discretion to decline particular concerts and play elsewhere Here they did retain that right and were able to choose how much time to commit to Sinfonia They could even back out of performances that had already signed on for And it s okay that Sinfonia offered inducements to preferred performers such as regular status Can companies avoid liability by using 0 Questions of employment do not arise under 1981 because that statute reaches all contract relations not merely employment So 1981 embraces relationships that do not constitute employment under Title VII such as partnerships or independent contractor status 0 What about under Title VII ADEA and ADA Yes independent contractors do not count as employer or employment 35 Leased Workers or owners as employees people trying to opt out of the system Integrated and Joint employers they have an incentive to not be too closely tied to their employees Hard to litigate because of massive amount of discovery Also unpaid interns and volunteers are not considered employees But under Fair Labor Standards Act they pretty much are You are treated as an employee Exemptions private membership club like country clubs and golf clubs may employ people to serve members not as employees Does not apply to Indian tribes possibly casinos Treaties between US and Japan Limitation the ministerial exception which is predicated on the religion clauses of the 1st amendment Freedom of association however was rejected as a limitation in cases where women and black children had to be admitted There is limited freedom of association with the boy scouts case in which a gay scoutmaster was not allowed Discrimination Because of Sex Oncale v Sundowner O shore Services US SC 1998 Issue Whether workplace harassment can violate Title VII s prohibition against discrimination because of sex when the harasser and harassed employee are of the same sex 0 District and appellate court ruled that P had no cause of action under Title VII for harassment by male co workers 0 However the SC rules that Title VII s prohibition of discrimination because ofsex protects men as well as women 0 HELD Court rules it does not matter whether the discriminating party is of the same sex as the victim Court extends Title VII to sexual harassment claims Samesex sexual harassment claims may be brought under the statute 0 Title VII does not prohibit all verbal or physical harassment in the workplace it is only directed at discrimination because of sex Whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed 0 SEVERITY Title VII only forbids conduct so offensive as to alter the conditions of the victim s employment Harassment need not be sexual to be actionable As long as the victim was targeted because of their sex there need be no sexual desire But how do you prove that you were harassed because of your sex gt Can show sexual advances but not conclusive because it s not always about sexual desire sometimes it s about control and power gt Oncale says 1 credible evidence that the harasser is gay or lesbian and 2 proof that the P was harassed in such sex specific and derogatory terms as to reveal an antipathy to persons of the P s gender The Equal Opportunity Harasser harasses both men and women Can you still make the claim that it was because of sex Most courts have declared that the harassed do not have claims So if you harass one person they have a suit But the more people you harass across gender lines the less likely you are to be sued 36 Discrimination on the basis of sexual orientation Vickers v Fairfield Medical Center 6th Circuit 2006 Vickers claimed sex discrimination sexual harassment and retaliation Court affirmed district that Vickers could not prevail on any of his federal claims as a matter of law 0 Sexual orientation is not a prohibited basis for discriminatory acts under Title VII Although the SC has held that same sex discrimination is permissible under certain circumstances 0 Court holds the theory of sex stereotyping under Price Waterhouse is not broad enough to encompass the claim that a male worker was sexually harassed because of his perceived homosexuality His claim is not based on gender nonconformity like in Price Waterhouse 0 Vickers claim fails because he did not allege that he did not conform to traditional gender stereotypes in any observable way at work only that his coworkers classified him as homosexual 0 Dissent failure to conform to gender stereotypes violates Title VII Price Waterhouse P was subjected to hostile treatment and environment because he was not masculine enough CURRENT After this case However the EEOC memo of 2315 directs field officers to investigate claims of genderidentity and sexualorientation discrimination as claims of sex discrimination Employment NonDiscrimination Act Bill has been introduced to prohibit discrimination because of an individual s actual or perceived sexual orientation or gender identity No preferential treatment or quotas no disparate impact claims exemptions for religious organizations But it keeps being shot down Sexual Orientation Discrimination nontitle VII protections state and local laws and constitutional protections 0 Sexual RelationshipsAttractiveness 0 Intimate Relationships 0 Sexual Favoritism women using sexuality or personal relationships to their advantage was not violative of Title VII DeCintio v Westchester County Medical Center Men were not discriminated against because they were males but because the boss favored his lover Title VII based on status not on his or her sexual affiliations It was only 1 person not a bunch of women which could possibly then discriminate against men If it is limited then it s not really an issue to the courts Isolated incidents are not as dangerous otherwise it could lead women to be taken advantage of 0 Nelson v Knight Wife told her husband to fire an attractive employee Court held it was not sex discrimination It was not solely because the employee was a women but that person in particular that she didn t like because her husband and she were texting This was a personal matter so the wife didn t violate Title VII 0 What about someone fired because she was too attractive so she would distract the men who worked there Was not actionable Not clear if they settled Debrahlee Lorenzana What about cases where the P was harassed because she refused to continue to have a casual sexual relationship after the breakup Not really Title VII Forrest v Brinker Int l Payroll Co Pipkins v City of Temple Terrace Succar v Dade County Sch Ba Jespersen v Harrah s Operating Company 9th Cir 2006 P worked at Harrah s as a bartender for 20 years In 2000 Harrah s implemented a personal best program which required appearance 37 standards for men and women with some sex differentiated appearance requirements such as hair nails and makeup 0 P objects as to the makeup requirement cost and timing but mainly because she did not want to wear it Sexbased difference in appearance standards alone without further showing of disparate effects does not constitute a prima facie case 0 Court holds that this policy was aimed at both males and females and was aimed at creating a professional and similar look An appearance standard that imposes different but essentially equal burdens on men and women is not disparate treatment Grooming standards that appropriately differentiate between the genders are not facially discriminatory 0 The material issue under settled law is not whether the policies are different but whether the policy imposed on the plaintiff creates an unequal burden for the plaintiff s gender 0 Men have to shave their face women have to put on makeup Gender stereotyping men should look like men and women should look like women ie hair length Company wouldn t let their male employees wear dresses to work These differences are because of sex and because companies are trying to appease public perception 0 Sex stereotyping in Price Waterhouse impeded P s ability to perform her work In this case the policy is different in that it applies to all bartenders male and female This is not a case where the dress or appearance requirement is intended to be sexually provocative and tending to stereotype women as sex objects But it is still asking for gender conformity in that in Price the woman was told to wear makeup and act more feminine Hair length earrings uniforms for women weight standards Ex of grooming standard that does impose disparate treatment men wear suits but women can t discriminatory even though it s not a burden Women had to wear skimpy outfit in a realty company discriminatory But most of the time grooming standards are not held to constitute disparate treatment Exceptions to the equality principle equalizing employment opportunity even for groups who are different in some respects ie religion Pregnancy child birth and related medical conditions affect a woman s ability to work 68 weeks of leave General Electric v Gilbert US SC 1976 Insurance plan excluding pregnancy from coverage divides potential recipients into two groups pregnant women and nonpregnant persons While the first group is exclusively female the second includes members of both sexes Court held that discrimination on the basis of pregnancy was not discrimination on the basis of sex within the meaning of Title VII Pregnancy classifications are not gender classifications Court did not like this interpretation of the law Pregnancy Discrimination Act amended Title VII to include a new 7011k1 the terms because of sex or on the basis of sex include but are not limited to because of or on the basis of pregnancy childbirth or related medical conditions and women affected by childbirth pregnancy or related medical conditions shall be treated the same for all employmentrelated purposes including receipts of benefits under fringe benefit programs as other persons not so affected but similar in their ability or inability to work and nothing in section 703h of this title shall be interpreted to permit otherwise 38 After PDA and Newport News case it is clear that discrimination because of pregnancy childbirth or related medical conditions is discrimination because of sex under Title VII Related medical conditions can include IVF and abortion Maldonado v US Bank and Manufacturer s Bank 7th Cir 1999 P announced pregnancy to her supervisor and was fired the next day She brought suit alleging sex discrimination in violation of PDA Under PDA employers are not required to give pregnancy women special treatment they must only treat them the same as all other employees To prevail on a pregnancy discrimination claim a P must show that she was treated differently because of her pregnancy An unlawful employment practice occurs whenever pregnancy is a motivating factor for an adverse employment decision 0 P s termination was conducted at least in part due to her pregnancy as she was told she would be let go due to her condition 0 Bank doesn t dispute they fired her because she was pregnant but because she would be unavailable during the months they needed her The Bank claims that it is impossible to separate Ps job performance from her pregnancy That is true however the bank has no evidence or record that P had a job performance issue they just assumed that there would be a problem of absenteeism because of pregnancy sometime in the future 0 When is this kind of assumption justified anticipatory adverse action against a pregnant employee Depends on the employee s ability to continue to meet the employer s legitimate job expectations Did the bank have a BFOQ Does the company have to wait until it hurts their business I The summer availability BFOQ Has been accepted by circuit courts companies can say we wanted to hire you for this particular time for the job as long as it s true Can a pregnant woman be fired because it was immoral of her to get pregnant Maybe yes as long as the employer does or would also discharge men who engaged in premarital sex Accommodation pumping breast milk or getting a lighter work assignment page 356 Young v UPS US SC 2015 P belongs to protected class pregnant and sought accommodation The employer would not accommodate her but accommodated others similar in their ability or inability to work An employer s LNR legitimate nondiscriminatory reason for denying the accommodation cannot consist of the claim that the accommodation is more expensive or less convenient to add pregnant women to category of those whom the employer accommodates P s showing of pretext showed that the employer accommodates a large percentage of nonpregnant but not pregnant workers ADA does not directly protect pregnant women because pregnancy is not an impairment it is not considered a disability Indirect protection Similar in ability or inability to work and given exible work hours medical leave sometimes and relief from tasks such as heavy lifting and climbing stairs 39 Does Title VII require employers to grant childrearing leave No caregivers are not per se within the protected class under Title VII However emp disc against mothers or fathers because of their caregiving duties can be actionable under title VII Family and Medical Leave Act of 1993 ensures up to 12 weeks unpaid leave for variety of purposes including birth or adoption of a child Leave must take place within 12 months of the birth or adoption FMLA only applies to employers with 50 or more employees To be eligible employee must have worked there for at least 12 months for at least 1250 hours during the preceding year the start of the leave and be employed at a worksite where the employer employs at least 50 employees within a 75 mile radius FMLA does not provide for any other pregnancy accommodations than unpaid leave Not Limited to SeX Where harassment has created an offensive or hostile environment so severe or pervasive that it alters the conditions of employment it can either be offensive conduct jokes touching general propositions displays of porno sex derogatory language etc or it can be nonsexual behavior which is directed only towards one sex There is no requirement that there be a negative economic impact or a negative employment decision for there to be liability When determining whether there is a hostile work environment there is a three part test 1 Was the harassment unwelcome To be unwelcome the harassment must be uninvited and offend the victim 2 Is the action severe or pervasive Note most courts say that you get one freebie A good test is to determine whether the conduct would have been considered severe or pervasive to a reasonable person and if so whether the conduct was found to be severe or pervasive by the plaintiff The 9th Cir used by a reasonable woman 3 The court must find that the action altered the working conditions of the victim s employment Meritor Savings Bank v Vinson US SC 1986 Vinson discharged because of excessive leave claimed continuous sexual harassment during four years of employment Claimed she had sex with Taylor VP because she was afraid of losing her job She never reported his harassment to any of his supervisor s and never attempted to use the bank s complaint procedure 0 Unwelcome sexual advances that create an offensive or hostile working environment violate title VII Ps can prove title VII violation by proving discrimination based on sex has created a hostile or abusive work environment It s a hostile environment case up to the point that something actually happens tangible change then it becomes a discrimination case because of the adverse tangible employment action 0 For sexual harassment to be actionable it must be sufficiently severe or pervasive to alter the conditions of the victim s employment and create an abusive working environment 0 whether the conduct in question was severe or pervasive enough to contaminate the work environment 0 The fact that a sexual relationship was a voluntary one in the sense that the complainant was not forced to participate against her will is not a defense to a sexual harassment suit brought under Title VII Instead they have to prove that the sexual advances were unwelcome 40 0 What is unwelcome Court said that they could look at complainant s sexually provocative speech or dress when determining whether she found certain behavior unwelcome Look at the totality of the circumstances Remanded Quid Pro Quo Sexual Harassment extortionate pay or play harassment When to let in evidence of dress and sexual fantasies FRE 412 not allowed in rape cases past sexual conduct Page 365 1991 Civil Rights Acts now allows for emotional distress and punitive damages Harris v Forklift Systems US SC 1993 court held that Hardy s conduct vulgar language offensive gender slurs did not create an abusive environment 0 Issue Whether conduct to be actionable as abusive work environment harassment not quid pro quo in this case must must seriously affect an employee s psychological wellbeing or lead the plaintiff to suffer injury 0 Civil rights act is not limited to economic or tangible discrimination When the workplace is permeated with discriminatory intimidation ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim s employment and create and abusive working environment Title VII is violated 0 A discriminatory abusive work environment even one that does not seriously affect employees psychological wellbeing can and often will detract from employees job performance discourage employees from remaining on the job or keep them from advances in their careers 0 Whether an environment is hostile or abusive can be determined only by looking at all the circumstances This may include frequency of the discriminatory conduct its severity whether it is physically threatening or humiliating or a mere offensive utterance and whether it unreasonably interferes with an employee s work performance Effect on the employee s psychological wellbeing is relevant but only one factor to be taken into account 0 Conduct must be 1 objectively hostile or abusive and 2 subjectively viewed as abusive by the plaintiff Nontarget harassment whether the conduct is targeted at the plaintiff may be relevant to whether it is viewed as sufficiently severe or pervasive Generally the absence of directness has been fatal to claims 0 However a jury can consider similar acts of harassment of which a plaintiff becomes aware during the course of his or her employment even if the harassing acts were directed at other or occurred outside of the plaintiff s presence More weight should be given to acts committed by a serial harasser if the plaintiff knows that the same individual committed offending acts in the past Timeliness of Claims Title VII has a short period in which to file a charge with the EEOC 180 or 300 days from a violation 0 But the entire scope of a hostile work environment claim including behavior alleged outside the statutory time period is permissible for the purposes of assessing liability so long as any act contributing to that hostile environment takes place within the statutory time period BFOQ 0 Is harassing conduct ever permissible because of the necessities of the employment at question 41 0 Look to whether the employer has explicitly or implicitly communicated to its employees that certain customer behavior and environmental conditions are necessary to the job performed and relate to the essence of the business and the employees agree and to whether a worker welcomes even behaviors not expected by the employer 0 Friends TV show case held in favor of employer when plaintiff was working on the show in which the language used by the writers could not reasonably have been viewed as harassment 0 Sometimes however employers can be liable if they don t take reasonable steps to protect their employees like prison guards or caregivers The Reasonable Person Requirement conduct must be reasonably perceived as hostile by a reasonable person in the victim s shoes Also the reasonable person must have the same fundamental characteristics as the victim Fuller v City of Oakland So juries can differentiate between genders and racialethnic groups when determining reasonableness Unwelcome Conduct Harris made it clear that it is not enough for the victim to reasonably perceive the conduct as hostile or abusive the victim herself must subjectively perceive the conduct to be abusive for a Title VII violation If she did not know the conduct was occurring for example then the conduct would not have altered her work environment 0 Might welcoming refer not to her subjective feelings but to what a reasonable man might perceive she welcomed Courts have held that unwelcomeness has to be communicated EEOC v Prospect Airport Services Vicarious Liability a If there is quid pro quo harassment by management the employer is probably strictly liable b Under hostile work environment analysis if there is a policy against sexual harassment and there was a reasonable avenue of complaint that was utilized correctly by both the victim and the employer then there will not be liability unless the employer fails to take reasonable remedial actions There may be an exception if the reported conduct was so severe that the employee had objectively measurable injuries c The standard for coworker harassment is whether the employer knew or should have known about the harassment d Under vicarious liability the employer will be liable if a supervisor takes a tangible employment action against a subordinate as a result of illegal harassment e It is an affirmative defense for the employer to prove i The employer exercised reasonable care to prevent and promptly correct any sexual harassing behavior and ii The employee unreasonably failed to take advantage of the procedure which was available failure to report the use an available complaint procedure usually satisfies this element Burlington Industries v Ellerth US SC 1998 Issue whether an employee who refuses the unwelcome and threatening sexual advances of a supervisor yet suffers no adverse tangible job consequences can recover against the employer without showing the employer is negligent or otherwise at fault for a supervisor s actions in this case court remanded to prove affirmative defense 42 District court found that although Supervisor s behavior was severe and pervasive enough to create a hostile work environment Burlington neither knew or should have known about the conduct Cases in which threats were carried out are referred to as quid pro quo which are different from cases in which bothersome attentions or sexual remarks are sufficiently severe or pervasive enough to create a hostile work environment not carried out There is a difference between quid pro quo claims and hostile work environment claims the latter requiring harassment that is severe or pervasive If this was a quid pro quo case then standard of employer responsibility would have been subject to vicarious liability An employer may be liable for both negligent and intentional torts committed by an employee within the scope of his or her employment However 0 There are some cases where agency principles impose liability on employers even where the employees committed torts outside the scope of employment 0 Restatement 2192 exceptions a the master intended the conduct or the consequences b the master was negligent or reckless c the conduct violated a nondelegable duty of the master or d the servant purported to act or speak on behalf of the principal and there was reliance upon apparent authority or he was aided in accomplishing the tort by the existence of the agency relation I a employer is negligent if they knew or should have known about the conduct and failed to stop it I d aided in the agency relation standard requires the existence of something more than the employment relation itself 0 For instance where a supervisor takes a tangible employment action against the subordinate This constitutes a significant change in employment status such as hiring firing failing to promote reassignment with significantly different responsibilities or a decision causing a significant change in benefits 0 When a supervisor makes a tangible employment decision there is assurance that the injury could not have been in icted absent the agency relation In most cases the tangible employment decision in icts direct economic harm A tangible employment decision is seen as being approved by the company because it requires an official act of the enterprise a company act An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate or successively higher authority over the employee When no tangible employment action is taken a defending employer may raise an to liability of damages subject to proof by a preponderance of the evidence 0 Two necessary elements to the defense 1 That the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and 2 That the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise 43 0 No affirmative defense is available when the supervisor s harassment culminates in a tangible employment action such as discharge demotion or undesirable reassignment For a tangible employment action there has to be a fulfilled threat hiring firing not getting a promotion change in job responsibilities Supervisor has to be immediately above the P or the person above that not supervisor of another department Ellerth No policy 9 P still should have reported and spoken up Vicarious Ligbilitv EEOC thought that a supervisor is a person who exercises significant discretion over an employee s daily work is rejected in Vance The word supervisor is not included in Title VII But harassment can occur even without tangible employment actions EX changing someone to the graveyard shift or giving them much harder work Threatening to make female employee clean the toilets for a year unless she went out with him Court thinks that this term is easier for juries and lets them know which categories to put people in before trial supervisor or coworker But there would be less sexual harassment claims brought 9 reduces the scope of liability for employers Vance v Ball State University US SC 2013 an employer is deemed a supervisor for purposes of vicarious liability under Title VII is he or she is empowered by the employer to take tangible employment actions against the victim Facts Davis white catering specialist did not have power to hire fire demote promote transfer or discipline Vance black full time catering assistant filed complaints with BSU and EEOC alleging racial harassment and discrimination Davis would give her a hard time glaring slamming pots and pans intimidating her Court held in favor of Davis Supervisors can warrant employer liability because when a supervisor makes a tangible employment decision there is assurance the injury could not have been in icted absent the agency relation It requires an official act of the company The employer can also be liable for a hostile work environment created by the supervisor if the employer is not able to establish an affirmative defense F aragherEllerth Ability to direct another employee s tasks is simply not sufficient for a coworker to be deemed a supervisor Coworkers cannot create direct economic harm by docking pay or making a tangible employment action Even in cases where the coworker harasses instead of a supervisor the Plaintiff can still win on a showing that his or her employer was negligent in failing to prevent harassment from taking place Evidence that the employer did not monitor the workplace failed to respond to complaints failed to provide a system for registering complaints or discouraged complaints from being filed would be relevant Ginsburg Dissent should have used Skidmore deference to defer to EEOC s interpretation of supervisor She called on Congress to correct the court s interpretation because she thinks they got it wrong Alter Ego Liability Company is liable because the person who is doing it is so high up that they are the company Harris 44 When it is supervisory harassment the employer bears the burden of proving the affirmative defense in co worker harassment cases it is the plaintiff s burden to prove the employer s knowledge and failure to take corrective action in order to establish its negligence Employer duty is the same with customer harassment as it is with coworker harassment The employer is responsible for sexual harassment if it knows or should have known of it unless it can demonstrate immediate and appropriate corrective action This is a negligence case not really a sexual harassment case thirdparty harassment Nonsupervisory harassment and the negligence standard whether the employer knew or should have known EEOC v Management Hospitality 0f Racine Inc 7th Cir 2012 EEOC brought action on behalf of 2 servers at IHOP alleging sexual harassment in violation of Title VII of the Civil Rights Act of 1964 Jury found in favor of plaintiffs on the hostile work environment claim Both harassed employees were teenagers harassment was arguably severe and pervasive Any kind of sexual harassment verbal physical or visual harassment was supposed to be reported to manager or company representatives there was a zero tolerance policy in place however the manager did not take these claims seriously 0 The harassed employee Shisler told her manager and assistant manager who blew her off and called her a silly girl After they didn t do anything to help her she gave up and kept working because she needed the money Likewise employee Powell reported the sexual harassment to her manager who did nothing Powell learned not to say anything because they wouldn t help her Smith District Manager determined that Dahl the general manager violated the sexual harassment policy by not investigating their complaints and terminated her an employer can be held vicariously liable for a supervisor s sexual harassment of a subordinate However an employer can avoid liability IF a the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and b that the P employee unreasonably failed to take advantage of any preventative or corrective opportunities provided bv the emplover or to avoid harm otherwise 0 In this case Smith immediately began an investigation upon hearing allegations of sexual harassment and took witness statements and took corrective action by firing Dahl However the court says that the evidence was sufficient for a reasonable jury to find otherwise 0 A mere sexual harassment policy cannot shield a company from their responsibility to prevent sexual harassment in the workplace The policy must also provide a meaningful process whereby an employee can express his or her concerns the mechanism must also be reasonable In this case it was not reasonably effective in its application 0 Prompt investigation of alleged misconduct is the hallmark of reasonable corrective action Cerros v Steel Techs Inc There was no investigation and even the later investigation took a longer time than necessary 0 Did claimants unreasonably fail to take advantage of preventivecorrective measures No under b both employees complained of their harassment to their managers within the meaning of the policy it didn t say to report it to one specific person Smith 45 What to do with your company s antiharassment policy gt Declare that the workplace harassment is prohibited gt Describe prohibited harassment gt Provide names and contact info of persons to whom complaints can be made 0 Note Open door policy Assurance of confidentiality of complaint to the extent that you can Unfounded harassment complaints may result in discipline including discharge of the complainant Or perhaps transfer them 0 However this could prevent employees from going forth with complaints if they didn t have proof or something 1st amendment issues page 399 Because the speech itself forms the basis of liability Sexual harassment can constitute fighting words and obscene speech which can be prohibited or restricted without violating the 1st amendment Also changes depending on whether you are a public or private employee What about an employee who posts something terrible on fb or twitter Could be protected activity or not Can be disciplined Police officer who expressed his dedication to the KKK free speech Alternate remedies for harassment State employment discrimination statutes State employees can claim constitutional violation to their equal rights Tort claims IIED andor assault Sec 102 limits damages that can be awarded under Title VII including punitive and compensatory damages Same analysis as other discrimination under Title VII Prima facie case may include a 5th factor that the employer knew of the religion Title VII Sec 7010 The term religion includes all aspects of religious observance and practice as well as belief unless an employer demonstrates that he is unable to reasonably accommodate to an employee s or prospective employee s religious observance or practice without undue hardship on the conduct of the employer s business Passed in the 70 s meant to cover Catholics and Jewish people TWA v Hardison US 1997 employee wanted to observe Sabbath on Saturdays which created a problem because the employer needed people to work Saturdays TWA has to make reasonable accommodations unless there is an undue hardship Court held that requiring the employer to bear more than a de minimis cost in order to accommodate the employee is an undue hardship Allowing some employees off on Saturdays would be unequal treatment to other employees The undue hardship on TWA would be making them abandon their seniority system in which the most senior people get the option to not work Saturdays first Additional costs can also be an undue hardship 46 Title VII prohibits discrimination because of religion There is the duty to reasonably accommodate religious practices and observances However statute permits some discrimination when it comes to certain religious employers and bona fide occupational qualifications Reed v Great Lakes Cos 7th Cir 2003 duty of Reed executive housekeeper at holiday inn hotel to keep a copy of the bible in every hotel room Reed went to a meeting in which there was scripture reading and prayer and left half way through Manager told Reed he embarrassed him and not to do it again to which reed responded that he couldn t be made to attend a religious event He was fired for insubordination 0 Reed s position title VII forbids an employer to require an employee to attend a religious meeting 0 Court holds that Reed did not prove intentional religious discrimination because Reed never said what his religion was or wasn t the prayer meeting was a surprise to the manager and that Reeds leaving and subsequent conversation proved that he was an uncooperative employee 0 Title VII requires an employer to try to accommodate the religious needs of its employees that is to try to adjust the requirements of the job so that the employee can remain employed without giving up the practice of his religion provided the adjustment would not work an undue hardship on the employer 42 USC 2000ej 0 Title VII imposes a duty on the employer but also a reciprocal duty on the employee to give fair warning of the employment practices that will interfere with his religion and that he therefore wants waived or adjusted In this case Reed never gave any indication of his religion or lack thereof Court ruled against Reed on disparate treatment claim because absent proof of knowledge of the protected trait ie religion an employer could not be liable for disparate treatment discrimination 1 Mixed motives even when religion is found to be a motivating factor in an employment decision an employer may limit the P s remedies by demonstrating that it would have taken the same action for nondiscriminatory reasons see mixed motive remedies 2 Exceptions in Title VII and ADA a Certain religious organizationinstitutions see below 3 Bona Fide Occupational Qualification Defense permits some religious discrimination although the exemption of religion institutions from the prohibition of religious discrimination obviates the application of BFOQ in most cases 4 Religious restrictions by public employers have also been upheld when necessary to avoid establishment clause problems Establishment issues 9 pressure to remain neutral and not favor one religion over another When an employer offers a reasonable accommodation that satisfies its title VII duty even if another accommodation might be viewed as better responding to the employee s religious needs they have met the statutory requirement P 408 Posner says you should look at the employer s and employee s duties Reed should have given fair warning to the employer Sincerity which religious belief is sincere and which is not The judge and jury would decide factual inquiry Can t make a note as to rationality of belief but can look at whether it is sincerely held Central to employee s religion 47 Radicalism the church of body modification employer s public image don t want employee to wear facial jewelry Wilson v US West Communications 8th Cir 1995 Wilson began wearing an antiabortion button to work no dress code until abortion was ended She was asked not to wear it while she was teaching She refused to stop wearing it because of her religion It caused disruptions at work 40 decline in productivity timerobbing some employees even threatened to walk off their jobs Coworkers found it offensive for some reasons other than abortion and religion infertility miscarriage death of a premature infant 0 She said she wore it because Virgin Mary told her to and to be a living witness They gave her 3 alternative accommodations regarding her button wearing and she did not do any of them 0 An employee establishes a by showing that l The employee has a bona fide religious belief that con icts with an employment requirement 2 The employee informed the employer of this belief and 3 The employee was disciplined for failing to comply with the con icting employment requirement 0 Don t the other employees have rights to not be subjected to her buttontshirt 0 Can D defeat Wilson s prima facie case with the af rmative defense of reasonable accommodation YES Employer required to reasonably accommodate the religious beliefs or practices of their employees unless doing so would cause the employer undue hardship 0 If this didn t work then you would look at whether it constituted an unreasonable hardship on the employer yes it did 2 Religious Institutions Exemption from the prohibition of religious discrimination religious employer can discriminate on the basis of religion but no other protected classes Congress wanted to give them room to operate free of some restrictions under title VII Even extended to Loyola University where only Jesuits could be employed or get tenured in a certain area Held permissible because religion was a BFOQ for that particular position didn t want to lose the character of J esuitness for that job Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof How does title VII stack up against the 1st amendment HosannaTabor Evangelical Lutheran Church and School v EEOC US SC 2012 Issue whether the 1st amendment bars action for wrongful termination when the employer is a religious group and the employee is one of the group s ministers 0 Ministerial Exception grounded in the 1st amendment which precludes application of such legislation to claims concerning the employment relationship between a religious institution and its member Free exercise clause protects a religious group s rights to shape its own faith and mission through its appointments The employer should not have to have an unwanted minister 0 Right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes or prescribes conduct that his religion prescribes or proscribes 0 Hence the court says two Native American members using Peyote that violated the law is different than the ADA s prohibition on retaliation being applied to a church s selection of its ministers Outward physical act v internal church decision 48 0 Court holds that the ministerial exception applies to this case because school held teacher out as a minister formal process and schooling she held herself out as a minister Thus the court dismisses her employment discrimination suit against her religious employer Awarding her any relief would function as a penalty on the church for terminating an unwanted minister and would be prohibited by the 1st amendment 0 Employment Div V Smith generally applicable laws and internal church governance National Origin focuses on an individual s country of origin it is also national origin discrimination to refuse to hire an individual because of his ancestry the country of origin of his parents or more remote ancestors May or may not have racial aspects May also be complicated by religious aspects Even though national origin and alienage can be connected Title VII has not been held to bar alienage discrimination National origin is not a citizenship question Alienage a person s citizenship or noncitizenship status Title VII bars discrimination on the basis of national origin but permits discrimination based on account of alienage or citizenship Citizenship and National Origin are not the same thing under Title VII This runs contrary to the EEOC s policy However Title VII can prohibit discrimination on the basis of citizenship whenever it has the purpose or effect of discriminating on the basis of national origin The Act proscribes not only overt discrimination but also practices that are fair in form but discriminatory in operation Section 1981 prohibits discrimination of account of alienage national origin Anderson v Conboy IRCA prohibits national origin but requires some types of alienage discrimination those permitted to work v those not permitted to work Chamber of Commerce v Whiting US SC 2011 Facts Arizona law required that state employers could not hire unauthorized aliens and could even have licenses of state employer suspended or revoked if they knowingly or intentionally employed unauthorized aliens Law also required Arizona employers to use a federal electronic verification system Everify to confirm that the workers they hired are legally authorized workers Chamber of Commerce brought suit against Arizona for their new Legal Arizona Workers Act Issue Whether federal immigration law preempts those provisions of state law 0 Held Arizona law is not preempted by federal law because the state s licensing provisions fall within the federal statute s savings clause and it does not otherwise con ict with federal law FEDERAL Court goes through federal INA IRCA Form I9 show documentation to prove authorization to work Penalty under federal law is a fine Documentation checking can be done in good faith employer just needs to look at it and make sure it looks good 0 IRCA makes it unlawful for a person or other entity to hire or to recruit or refer for a fee for employment in the US an alien knowing the alien is an unauthorized alien An unauthorized alien is defined as one who is not lawfully admitted for permanent residence or not otherwise authorized by the AG to be employed in the US 0 Is federal IRCA similar to Arizona How is it different Arizona requires use of Everify employers have to run every potential employee s SS Have to find out whether they are authorized Everify was found later to not be very accurate Court said this doesn t con ict with federal scheme because it would be used for every new employee parallels federal law and penalty for not using it is the same as federal 49 Arizona law is more onerous because it could cause people to be put out of business business death penalty Chamber of commerce does not want this to happen IRCA s express preemption does not apply to state licensing and similar laws So Arizona is exempt for this penalty Express preemption of Arizona law No state says statute on its face does not do that and exempts licensing laws Occupational licenses typically don t say anything about compliance with federal law Discrimination concem business owners would likely discriminate against those of different national origins without even knowing if they were unauthorized workers because they don t even want to risk having their licenses revoked and their businesses closed IRCA immigration reform and control act page 444 IRCA covers employers with 414 employees note enforcement mechanism sanctions employers for hiring undocumented migrants and employers had to maintain a record demonstrating they asked for and examined specific documents IRCA and documentation of work status employer doesn t have to be a documents expert Ex social security card had one number less than normal but they gave her the good faith exception As long as the employer checks their papers and views it as a reasonable person Accent discrimination thought guy s Philippine accent was so heavy that people would not be able to understand him Court deferred to the employer and he lost He would have been in a contact and information position where he would have had to interact with customers BFOQ Language policies requiring workers to be uent in English are probably permissible under Title VII Could also be a BFOQ There are also Englishonly policies which require the employee to speak only English while working Garcia v Gloor upheld the policy but see Maldonado v City of Altus which said it could be challenged as disparate impact and hostile work environment see page 22 Unauthorized alien s limited rights if you fire someone who is unauthorized do you have to pay them for the work they ve done union Court said no under NLRB case not Title VII case Company fired him because he was trying to form a union of unauthorized workers even though he was improperly fired for forming union he was not entitled to get backpay because he did not have the rights as an unauthorized worker Let s companies hire undocumented workers and not have to pay them minimum wage because the illegal aliens will not complain because they don t have any remedies UNION LIABILITY national labor relations act NLRA established the legal structure for the relationship between unions and employers The act made no provision for the problems of race or gender discrimination and as originally passed did not include any direct control of the activities of unions Congress directly barred unions from discrimination in Title VII s 703 based on limiting segregating or classifying member in any way which would deprive or tend to deprive any individual of employment opportunities Duty of fair representation steele v Louisville amp Nashville RR Union can be liable if they cause the employer to discriminate but the union is not under an obligation to remedy the discrimination by the employer Takeaway unions can t discriminate against anyone protected under title VII in the same way that employers can t Apply analysis to the union the same way you would to the employer Title VII Sec 703c Title VII Sec 704a It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment because he was opposed any practice made an unlawful employment 50 practice by this title or because he has made a charge testified assisted or participated in any manner in an investigation proceeding or hearing under this title ADEA Sec 623 d substantially identical language Retaliation also prohibited by ADA 1981 does not expressly say it but has also been held to prohibit retaliation Retaliation is the most frequently filed charge with the EEOC doesn t say the word retaliation anywhere in the statute Filing a claim in and of itself can create participation and sometimes opposition Two clauses the opposition clause and the free accessparticipation clause 0 Opposition Clause bars retaliation for opposing any practice that is made an unlawful employment practice P invoking the clause must at least have a reasonable good faith belief that the conduct complained of was unlawful I Opposition activity is allowed to encompass utilizing informal grievance procedures as well as staging informal protests and voicing one s opinions in order to bring attention to an employer s discriminatory activities 0 Free AccessParticipation Clause bars retaliation because an employee or applicant has made a charge testified assisted or participated in any manner in an investigation proceeding or hearing I Broader reasonable belief not even needed Can include not only filing a charge of lawsuit but testifying in court or at a deposition Distinguishing participation conduct from opposition conduct Clark County School District v Breeden US SC 2001 I hear making love to you is like making love to the Grand Canyon Court rules in favor of the company on both issues 0 Claims that she was punished for her complaints sexual harassment statement about statement made to her Opposition conduct internal complaint 0 But sexual harassment has to be severe or pervasive so as to alter the conditions of the employment and create an abusive working environment Teasing offhand comments and isolated incidents will not amount to discriminatory changes in the terms and conditions of employment 0 Court said that no reasonable person could have believed that the incident violated Title VII But really a lay person not an attorney could have believed that it was sexual harassment 0 Also claims participation conduct retaliation her filing of charges with the state agency and EEOC Court rules her transfer was already in the works before the right to sue letter from the EEOC and not dependent upon her complaint Crawford v Metro Gov t of Nashville US SC 2009 employee s participation in employer s internal investigation can constitute protected opposition conduct Company didn t like the answer the employee gave yes I saw my supervisor engage in oppositional conduct so they fired them Even though the employee fired wasn t the victim they are still protected under title VII during employer s investigation Does it matter whether the company asked you or whether you volunteered the information Brush v Sears Holding Corp 11th Cir 2012 Facts employee was terminated following a company s internal investigation into an allegation of workplace sexual harassment P here is not the victim of the harassment or the harasser but is one of the employees tasked with conducting the internal investigation 51 P kept wanting the victim to file criminal charges for rape but victim didn t want to and didn t want her husband to know Company terminated Brush soon after because she went directly to the employee by herself outside of procedure Brush claims she was terminated in retaliation for certain actions she took as an investigator of the sexual harassment claim Only involves the opposition clause To make a P must show 1 She engaged in statutorily protected activity look to reasonable belief opposition 2 She suffered a materially adverse employment action and 3 There was a causal link between the protected activity and the subsequent materially adverse employment action Employee not need establish that she was protesting an unlawful practice but rather only that she had a reasonable belief to believe that the action was unlawful In this case the court holds that P s disagreement with the way in which D conducted investigation cannot constitute protected activity under Title VII She cannot predicate her claim based on sexual harassment and rape because she is neither the aggrieved party nor the accused party So her claims do not relate to the illegal allegation but the procedures of the investigation The Manager Rule holds that a management employee that in the course of her normal job performance disagree with or opposes the action of an employer does not engage in protected activity 0 To qualify as a protected activity an employee must cross the line from being an employee performing her job to an employee lodging a personal complaint 0 Brush did not assert any rights under Title VII her disagreement with internal procedures is not protected opposition activity She had no reasonable belief that the company engaged in unlawful actions ThirdParty Harassment Issue Thompson v North American Stainless US SC 2011 Facts Thompson and fianc were both employees of D She filed sex discrimination charge with EEOC and D fired Thompson who then filed charge with EEOC and sued claiming the D fired him in order to retaliate against fiance for filing her charge with EEOC Issues 1 Did D s firing of Thompson constitute unlawful retaliation If facts are true then yes it violates title VII 2 Does title VII grant Thompson a cause of action Yes 0 1 Fired Thompson in order to dissuade his fiance from engaging in protected activity No textual basis for making an exception when it comes to thirdparty reprisals But it does then become a casebycase fact pattern analysis 0 2 A civil action may be brought by the person claiming to be aggrieved A person aggrieved has a common usage in which a P may not sue unless he falls within the zone of interests sought to be protected Court agrees that Thompson falls within the protected by Title VII I Note discussion of Article III standing 52 0 But what about if it s just your girlfriend close friend coworker close family member mere acquaintance Court didn t close it off so now this is what s going on The primary problem in these cases is determining whether the employer retaliated against reasonable conduct or acted to limit unreasonable and unprotected conduct Laughlin v Metropolitan Washington Airports Authority 4th Cir 1998 P sued for retaliation claiming her conduct was protected under both participation and opposition clauses of Title VII District Court held that it was not protected conduct because it was surreptitious dishonest and disloyal 0 She removed confidential documents from her boss s desk photocopied them and sent them to someone else Is this protected activity to qualify for a prima facie case of retaliation 0 Court rules it was not participation conduct because there was no current and ongoing investigation proceeding or hearing in which she could have been participating 0 Was it an opposition activity No balance the l purpose of her actions to protect persons engaging reasonably in activities opposing discrimination against 2 Congress equally manifest desire not to tie the hands of employers in the objective selection and control of personnel I Court holds that D s interest in the maintenance and security of confidential and sensitive personnel documents outweighs Laughlin s interest in providing those documents to someone else 0 Title VII was not intended to immunize insubordinate disruptive or nonproductive behavior at work See page 475 note 4 Laughlin court follows the McDonnell Douglas Proof Scheme pingpong l P establishes a prima facie case see above 2 employer burden to articulate a nondiscriminatory reason for its actions and 3 the P rebuts by proving pretext Differences between Title VII Sec 703 I and 704 703a reaches only actions that affect employment or that alter the conditions of the workplace 703a prevents injury to a person based on who they are ie their status 704a is not limited to discriminatory acts that affect those terms and conditions 704a prevents harm to individuals based on what they do ie their conduct 0 Can you have both 703a and 704a claims in one case YES Race discrimination 703 when they complained the employer fired them 704 0 Can you win on one and not the other YES they are not coterminous You could win on race and then lose on retaliation or you could lose on race and win on retaliation Depends on whether it was reasonable and the mindset of the employer Always look for both claims Roshan case got death threats from criminal investigation he was conducting FBI claimed it was outside the workplace not a term or condition so they wouldn t help To the extent that was retaliation for complaints he had made before the court held that even if it wasn t a term of condition of employment the FBI had a duty under 704a 53 What about retaliatory threats 7th circuit held that an unfulfilled threat cannot violate the antiretaliation provision of the federal statutes They are the minority though A lot of courts think that retaliatory threats could dissuade a reasonable worker under the standard T upperwien v Entergy 2Iml circuit held that there was no retaliation that was materially adverse even though there were threats of termination comments and staring during meeting forcing him to switch from day shift to night shift But where supervisor called employee in wadded up her formal complaint of harassment called it total bullshit and told her he never wanted to see her again counted as materially adverse employment action YoungLosee v Graphic Packing Int l No adverse action where employer threatened to discharge plaintiff if he did not withdraw his EEOC charges Chapin v FortRohr Motors Inc Adverse Action Discrimination actions require adverse actions to have occurred Is adverse action a requirement of a retaliation claim as well Burlington Northern and Santa Fe Railway Co v White US SC 2006 female worker who complained of harassment by her supervisor was suspended without pay for 37 days after being switched to a harder job She was later reinstated with backpay so she suffered no economic harm Did the change in her job responsibilities and her suspension constitute actionable retaliation under Title VII Jury and 6th Circuit ruled in her favor SC affirmed SC does not agree that the antiretaliation provision 704 should be limited to conduct that affects the employee s compensation terms conditions or privileges of employment Scope of antiretaliation provision extends beyond workplace related or employment related acts and harms Look to purpose and effectiveness of Congress Antiretaliation provision protects an individual not from all retaliation but from retaliation that produces an injury or harm So what level of seriousness must the harm rise to before it become actionable retaliation 0 P must show that a reasonable employee would have found the challenged action materially adverse it might have dissuaded a reasonable worker from making or supporting a charge of discrimination 0 Must also be materially adverse Prohibits employer actions which are likely to deter victims of discrimination from complaining to the EEOC the courts and their employers List of materially adverse discrimination on page 4834 EEOC has consistently found that retaliatory work assignments in this case more physical labor and dirtier work to be a classic and widely recognized example of forbidden retaliation Should be looked at on a case by case basis as it does not make it automatically actionable Also the court says that if they were to say Burlington s suspension of White is okay because they later gave her backpay they would be undermining congressional intent and letting employers avoid liability in this fashion retaliation claims requires protected conduct an adverse action and a causal link between the two What constitutes a causal link Depends on the case and the jurisdiction Employer knowledge of the employee s protected activity 54 0 If an employer does not know an employee has engaged in protected conduct it can t have her fired because of it Breeden Timing when adverse action follows closely on the heels of the protected conduct it can be inferred that one may have caused the other However more than the temporal elements must be met even though it can be used to show a prima facie case What level of causation is needed for retaliation claims 0 Motivating factor standard found in 703 m No 0 Price Waterhouse Standard I Yes Prior to Gross most circuits held that Price Waterhouse was controlling standard and not 703m 0 Butfor causation used in Gross I Not sure whether this will be used instead of Price Waterhouse soon However Gross s butfor causation standard does govern ADEA retaliation cases It is not unlawful to terminate an employee for good cause and reasonable factors other than age RFOA page 24 The EEOC makes it clear though that age must play no part in reasonable factors The employer can t then admit age discrimination while claiming some justification such as economic necessity In short any factor that re ects an intent to discriminate because of age can t establish a defense Bona fide executive exception although mandatory retirement is generally prohibited under ADEA bona fide executives or those in high policy making positions can be mandatorily retired at age 65 under certain circumstances Must have been a bona fide executive for 2 years Eligible for a retirement benefit of at least 44000 Exception for police and firefighters Police and firefighters have been interpreted broadly They have been exempt from ADEA prohibition on age discrimination Limits both for hire and for discharge after age 55 for individuals employed as a fire fighter or law enforcement officer Action must be taken pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of this act Bona fide employee benefits plan A benefit plan can never require or permit involuntary retirement Three threshold criteria for the application of this exception I Probably concerns fringe benefits rather than base compensation or other privileges of employment 2 Not only must benefits be involved but a plan must be in effect 3 Any benefits at issue must be denied or reduced pursuant to the plan to be within the exception The OWBPA adopts the equal costs principle Under this principal it is lawful for an employer to provide less benefits to older workers if the employer has a cost reason for doing so However the employer must incur cost equal to what is spent on other employees For instance term life insurance is going to be more expensive for older employees therefore the employer can provide each employee with the amount of protection that 50 will buy A young worker will be insured for more than an older worker Early retirement incentive plan Must be knowing and voluntary Meet the statutory requirements See pg 727 55 Title 1 covers most employment agencies labor organizations and employers including state and local government Private employers only subject to title 1 so that s what we ll focus on Covers private employers with 15 or more employees Americans with Disabilities Amendments Act of 2008 defining who is an individual with a disability Actually there are now less disabled people working then there were in the 80 s before ADA was passed ADA seeks to protect only an individual with a disability who is qualified which means that employers are permitted to engage in disparate treatment when the disabled employee is unable to perform the essential functions of the job with or without reasonable accommodation employers are free to use qualification standards that screen out disabled individuals if those qualifications are job related and consistent with business necessity Employers are legally obligated to treat covered employees equally or differently depending on the circumstances 0 Employers must treat individuals with disabilities equally if they are qualified and their disabilities do not require accommodation 0 But employers are permitted to treat such individuals differently if their disabilities cannot be accommodated 0 And employers are required to treat such individuals differently if reasonable accommodations are necessary to ensure equal employment opportunity and benefits Reasonable accommodation also comes up in religious discrimination claims Exception Undue Hardship defense which makes cost an expressly enumerated statutory defense to discrimination based on the duty to accommodate see below Impairment alone does not mean disability That is only the 1st step ADA Sec 32 Disability an individual B A record of such an impairment or C Being regarded as having such an impairment Does not constitute a disability sexual preferences and compulsive behavior like gambling kleptomania pyromania or disorders resulting from use of illegal drugs Pregnancy is not a disability or an impairment p 496 If an employee is discriminated against because of an impairment whether real or perceived by the employer the protections of the act are triggered These are called regarded as plaintiffs because they do not actually have a disability 0 She need then not show that the impairment substantially limited a major life activity but only that the employee took a prohibited action because of the actual or perceived impairment see ADAAA below 0 However only individuals who actually have the disability are allowed accommodation Physical Impairment is any medical disorder condition disfigurement or loss affecting one of the body systems such as neurological musculoskeletal special sense organs respiratory including speech organs cardiovascular reproductive digestive genitourinary immune circulatory hemic lymphatic skin and endocrine 56 Mental Impairment is any mental or psychological disorder such as intellectual disability organic brain syndrome emotional or mental illness and specific learning disabilities Examples of conditions that are impairments AIDs Alcoholism Asthma Blindness Cancer Depression Diabetes Epilepsy Heart Disease Migraine Headaches loss of body parts Voluntary Conditions Obesity as of now is not really considered a disability unless it is connected to some kind of physiological causedisorder However morbid obesity is a disability One court held that the ADAAA extends disability coverage to eating disorders Lung cancer related to smoking stuff like that does not matter It is the condition that matters not the voluntary conduct that got you there Temporary Impairment SC stated that the ADA covers impairments that are permanent or longterm longer than 6 months Because injuries heal M genetic information nondiscrimination act prohibits discrimination by employers and health insurers based on genetic information Applies to employers public and private with 15 or more employees You are not disabled today for a condition that may manifest itself in the future eX Huntington s disease They could bring claim for regarded as discrimination What 0 According to ADAAA as amended Caring for oneself performing manual tasks seeing hearing eating sleeping walking lifting bending speaking breathing reading concentrating thinking communicating and working Also the operation of major bodily functions 0 Not one dancing but it depends subjectively on the person like if that person had been a professional ballroom dancer or it was part of their life Also not included caring for others driving the ability to have a relationship and grocery shopping 0 The major life activity does not have to relate to discrimination in any way ie can t get pregnant shows disability for a dental discrimination claim Bragdon v Abbott US SC 1998 Issue is HIV infection a disability under the ADA when the infection has not yet progressed to the symptomatic phase YES 0 Facts Abbott sued Dentist because she had HIV noncontagious and he would not fill her cavity at his office He offered to perform the work at the hospital for no added fee but plus cost of hospital facilities She sued under 302 ADA alleging discrimination on basis of her disability by any person who operates a place of public accommodation This definition includes the professional office of a healthcare provider 0 Go through subsection A analysis 1 Is HIV an impairment Yes from the moment of infection does not matter whether they are contagious asymptomatic or not Just because you can t see it doesn t mean it s not affecting the person 2 Does the impairment affect a major life activitv Yes Reproduction is a major life activity chance of transmission of HIV to child 3 Is the physical impairment a substantial limit on the major life activity Yes How It is not enough that the impairment has an effect on a major life activity It has to these activities 57 Toyota Motor Manufacturing Kentucky Inc v William US SC 2002 Williams sued former employer for not making reasonable accommodations for her disability carpal tunnel Was Williams disabled under the ADA Held No manual disability as a matter of law Issue Did her impairments substantially limit a major life activity Appellate court said yes because it impeded her performing manual tasks SC says no because the appellate court only analyzed manual tasks and failed to ask whether the impairments prevented or restricted her from performing tasks that are of central importance to most people s daily lives Also has to be long term or permanent 0 Major life activity of manual tasks could include such things as picking stuff up typing on your computer However gardening and dancing are likely to not be of central importance to most people more like specific hobbies This case does not focus specifically on work related major life activity but manual tasks She also could not brush her teeth wash her face and sometimes needed help in dressing Do not look to whether the claimant is unable to perform the tasks associated with her specific job but whether they are unable to perform the variety of tasks central to most people s daily lives Congress later atly rejected Williams view that disability status is a demanding and narrow threshold and rejected their interpretation of substantially limits How do you know what is central and important to most people 0 EEOC provided a list of examples of impairment that should be found to almost always substantially limit a major life activity page 506 walking seeing learning working caring for oneself Record of such an impairment can include employment records medical records and education records Impairment in the record must be one that would substantially limit one or more of the individual s major life activities So if you were impaired in the past but not anymore you cannot be discriminated against past cancer patients ex Sutton Murphy Kirkinburg Ex take into account the fact that you wear eye glasses or that you take insulin If it deals with or mitigates your impairment then you are no longer impaired and no longer satisfy the prong that you are impaired However if they view you without the mitigating factor then you would be impaired Murphy should they take into account his high blood pressure medication Yes he has no impairment No he has an impairment This changes whether or not he is a qualified individual under ADA Kirkinburg sight in one eye only corrective measure was his brain which gave him monocular vision but without the corrective measure he had an impairment ALL these plaintiffs lost at the outset Are you considered as a person who lost a leg impaired or as a person with a prosthetic not impaired Some businesses would probably want to evaluate people with their mitigating factorcorrective measure because then if it fixes the situation they would not be impaired ADAAA amended the disability determination shall be made without regard to the ameliorative effects of mitigating measure So you have to consider the person and not the corrective measure with the exception of ordinary eyeglasses and contact lenses So you would have to take the eye exam with your glasses too many people in the US would be impaired without this vision exception 58 having such an impairment this is a situation in which you can be considered as having a disability even though you do not actually have a substantially limiting impairment Sutton v United Air Lines Inc US SC 1999 Twin sisters wanting to be pilots but did not have good enough Vision and wore eye glasses Ps are physically impaired eyesight but not disabled They argue that Airline mistakenly believed their physical impairments to substantially limit them in the major life activity of working ADAAA considers working a major life activity Court rules in favor of airline 0 OLD STANDARD you can be regarded as having an impairment under law either if 1 a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities or 2 a covered entity mistakenly believes that an actual nonlimiting impairment substantially limits one or more major life activities 0 Saying that you have an impairment is not the same as being disabled 0 Must be substantially limitedsignificantly restricted in performing a class of jobs or a broad range of jobs in various classes In this case they are not unemployable 0 IN GENERAL Inability to perform a single particular job does not constitute a substantial limitation in the major life activity of working Airline has a vision requirement Because the position of global airline pilot is a single job the Ps allegation does not support the claim that respondent regards Ps as having a substantially limiting impairment The Ps can seek other jobs with the airline regional pilot pilot instructor pilot for courier service so they would not be substantially limited in working Regarded AS under ADAAA Definition broadened protection compared to ADA there need be no finding that the impairment real or perceived was regarded as substantially limiting a major life activity However regarded as plaintiffs are not entitled to reasonable accommodations Also does not apply to minor or transitory impairments 0 42 USC Sec l2lO23A an individual can be regarded as having such an impairment whether or not the impairment limits or is perceived to limit a major life activity 0 Do not use Sutton approach use ADAAA for exam 0 Under ADAAA for regarded as plaintiffs you just have to prove that the employer mistakenly believed that the person had an impairment DO NOT have to prove that the employer mistakenly believed that the impairment substantially limited a major life activity Wells v Cincinnati Children s Hospital Medical Center SD Ohio 2012 P was suspended because she was using Morphine for health issues which affected her job performance P claims disability discrimination and retaliation claims under ADAAA She wanted to come back to work with a doctor s note and they said no 0 Court said there was no discriminatory animus Not reinstating her as a nurse in her prior unit was a materially adverse action Court said no need to ping pong this case under McDonnel Douglas because there was direct evidence of adverse action everyone knows why she was not reinstated Main argument is whether or not the actions they took was illegal 0 When there is direct evidence that the employer relied on the employee s disability in making an adverse employment decision in this case demotion in order to prevail on a disability discrimination claim the P must prove that she is disabled within the meaning of the act and that she was otherwise qualified for the position with or without a reasonable accommodation or with an alleged essential job function eliminated 59 0 If the P can prove these two elements then the employer has to demonstrate that the challenged job criterion is essential or that a proposed accommodation will impose an undue hardship upon the employer 0 Additionally employer has available that employing the individual in the position will pose a direct threat to the health and safety of other individuals in the workplace 42 USC 12113b 0 Court holds that the P can present a prima facie case and has met both elements of her burden That she is or was disabled under ADAAA as shown through the facts and was qualified to work upon return to job Individual with a Disability individual cannot just have a disability alone but must also be qualified The P must link his protected status to an adverse employment action 0 12112a ADA prohibits discrimination against a qualified individual on the basis of disability 0 Under ADA Title I no covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedure the hiring advancement or discharge of employees employee compensation job training and other terms conditions and privileges of employment 0 A qualified individual with a disability under title I 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 For the purposes of this title consideration shall be given to the employer s judgment as to what functions of a job are essential and if an employer has prepared a written description before advertising or interviewing applicants for the job this description shall be considered evidence of the essential functions of the job 121118 0 41 USC 121118 Consideration shall be given to the employer s judgment as to what functions of a job are essential and that written job descriptions prepared prior to advertising or interviewing applicants shall be considered evidence of the essential functions of the job Rehrs v The Iams Company 8th Circuit 2007 P has type 1 diabetes and was a warehouse technician D operated facility on 24 hour basis with three daily shifts P had a heart attack bypass surgery and a pacemaker implanted then went on short term disability leave He was placed on a different shift to help control his diabetes for 60 days but then requested it be made permanent D told him the accommodation could not be made permanent because shift rotation was an essential part of his job 0 District Court held Even if Rehrs diabetes was a disability he was not a qualified individual under ADA because he could not perform essential job function shift rotation 0 Employer bears the burden of proving that the job function is essential 0 Issue Is shift rotation an essential job function YES 0 Why Not implementing the rotation would harm the company from a production standpoint undermine the team concept adversely affect other technicians creating inequities and decrease their opportunities for promotion and development 0 Under the ADA an accommodation that would cause other employees to work harder longer or be deprived of opportunities is not mandated 0 The ADA does not require the creation of a new position or affirmative action for the disabled 6O 0 The essential function encompasses more than just core job requirements It may also include scheduling exibility EEOC v The Picture People Inc 10th Circuit 2012 employee is deaf uses ASL and notes writing but cannot read lips or speak Parties agree that she is disabled under ADA An essential part of her job was to interact with customers communicate with customers and conduct photo sessions often with children District court held employee could not establish that she was qualified with or without accommodation to perform an essential function of her job as a performer in the employer s store Issue 1 Are verbal communication skills an essential function of the performer position YES list of factors to consider on page 528 Issue 2 Were reasonable accommodations available NO Providing interpreters during staff meetings would not ameliorate her inability to interact verbally with customers Problem Man with Tourettes 1 Is he disabled Yes 2 Is he a qualified individual with a disability Can he perform the essential functions of the job with or without reasonable accommodation If he is not QID then you don t have to go into reasonable accommodation 3 Does the employer have to provide reasonable accommodations Undue hardship defense Failure to provide reasonable accommodations constitutes one form of discrimination under statute Sec 1021b 2152 company has to provide a reasonable accommodation for known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee unless the entity can demonstrate that the accommodation would impose a undue hardship on the operation of the business Also denial of employment opportunities to the otherwise qualified person cannot be based on the need to make reasonable accommodations A qualified individual is one with a disability who can perform the essential functions of the job she holds or desires with or without reasonable accommodations see statute above ADAAA does not require employers to reasonably accommodate regarded as plaintiffs They have to first prove a disability but if they are regarded as plaintiffs then they don t really have a disability What is a reasonable accommodation 0 ADA Section 1019 may include making existing facilities used by employees readily accessible to and usable by individuals with disabilities job restructuring part time or modified works schedules reassignment to a vacant position acquisition or modification of equipment appropriate adjustment or modification of examinations training material or policies provision of qualified readers or interpreters and other similar accommodations for individuals with disabilities In a reasonable accommodation case the Plaintiff is requesting different treatment Question is not whether the disability was considered but whether the disability entitled the employee or applicant to accommodation different treatment US Airways Inc v Barnett US SC 2002 Where the disability accommodation request con icts with a company s bona fide seniority system for promotions the interest of other workers and the seniority system will usually 61 prevail Where it con icts the accommodation is usually not reasonable Where the accommodation is unreasonable summary judgment is granted in favor of the employer unless there is evidence presented of special circumstances BREYER ADA requires preferential treatments The simple fact that an accommodation would provide a preference in the sense that it would permit the worker with a disability to violate a rule that others 999 must obey cannot in and of itself automatically show that the accommodation is not reasonable 0 Reasonable does not mean effective You are entitled to a reasonable accommodation but not perhaps the best reasonable accommodation or an effective one 0 Barnett wants an effective accommodation that lets him stay in his job which effects other employees who may deserve the job more Purpose is equality not absolute preference I Pemployee to defeat Demployer s motion for SJ bears the burden to prove that an accommodation seems reasonable on its face ie ordinarily or in the run of cases 0 Don t have to go case by case for seniority Justice Breyer wants a at rule However companies can change seniority policy at any time and it is not part of a contract for employment 0 Breyer thinks that the proposed accommodation would violate the rules of a seniority system and will not be reasonable in the run of cases I Once the P has made this showing the Demployer then has the burden to show special typically case specific circumstances that demonstrate undue hardship in the particular circumstance I P still has the opportunity to show that special circumstances warrant a finding that despite the presence of a seniority system the requested accommodation is reasonable on the particular facts Why do seniority systems trump They create and fulfill employee s fair expectation of uniform treatment They use objective standards and have an element of due process Also works as lay off protection Court does not think congress intended to undermine these systems Huber v WalMart 8th Cir 2008 Issue whether an employer who has an established policy to fill vacant job positions with the most qualified applicant is required to reassign a qualified disabled employee to a vacant position although the disabled employee is not the most qualified applicant for the position Court says no Should Walmart have given the disabled person hand injury disabled under ADA preference when she was not the most qualified No 10th circuit have to hire the disabled worker if they can do the job and 7th circuit have to consider all applicant on the same level but don t have to hire disabled if it would require them to turn away a superior applicant disagree 0 10th circuit reassignment obligation must mean something more than merely allowing a disabled person to compete equally with the rest of the world for a vacant position 0 7th circuit if the reassignment is feasible and does not require the employer to turn away a superior applicant the reassignment is mandatory Can they make the decision based on her physical impairment disability Not really it would thwart the whole purpose of the ADA putting disabled on equal playing field with other applicants 62 Court held in favor of Wamenquott To determine otherwise is affirmative action with a vengeance Vande Zande v State of Wisconsin Department of Administration 7th Cir 1995 pressure ulcers which are a part of Ps disability and a result of her condition must be reasonably accommodated D argued that they were episodic impairments like a broken leg temporary but the court held they were characteristic manifestations of disability Vocationally relevant disability paralyzed from the waist down 0 Complaint 1 P argues that D did not reasonably accommodate her enough when she was forced to stay home for 8 weeks but wanted to work from home if they would provide her with a desktop computer They said no so she lost some sick leave but no income 0 Posner Court held a reasonable jury could not have found that an employer was required to accommodate a disability by allowing the disabled to work by himself without supervision at home I Depends on the job in this case copying and filing is something that needs to be done at the office Team work and supervision needed Today this might be reasonable depending on the job working from home with your laptop 0 Complaint 2 kitchenette sinks aren t low enough for a person in a wheelchair so she had to use the one in the bathroom which she claimed stigmatized her and made her inferior It would have cost the company 150 to lower it on her oor Seeks damages for emotional distress 0 Court concludes that access to a particular sink when access to an equivalent sink conveniently located is provided is not a legal duty of an employer Employer has no duty to spend even modest amounts of money to bring about an absolute equality in working conditions 0 The duty of reasonable accommodation is satisfied when the employer does what is necessary to enable the disabled worker to work in reasonable comfort ADA Interpretive Guide suggests other accommodations that might be relevant to assisting an individual in performing essential job functions employer provided transportation accessible providing reserved parking spaces permitting an individual who is blind to use a guide dog at work employee with inability to write can use computerized records that were maintained manually Teacher moved to classroom with natural light shift change current location preferred over 2 hour commute to new office page 554 Reasonable accommodations necessary to enjoy bene ts and privileges of employment equal access to cafeterias lounges and restrooms These are usually viewed more favorably from the Ps side But Vande Zande ruled that the employer was not obligated to spend money to create absolute identical working conditions If it is not a 39obrelated accommodation then it is a personal item that the employer is not required to provide EEOC interpretive guidance EX employer not required to provide wheelchair or eyeglasses While the employer may be required to permit a blind person use of a guide dog at work the employer is not required to be the one to provide the guide dog or paid leave to train the guide dog because the dog is a personal item that the employee uses even if it s for work purposes Lyons v Legal Aid Society 1995 parking close to office was not merely a matter of personal convenience but was a workrelated need not merely a personal need 63 What if the employer is aware of the physical or mental impairment but not of the need for accommodation Burden is on the employee to tell the employer they need an accommodation You can see why the employer would not want to go up to employee and say I think you re disabled Some exception employee in a wheelchair you don t have to ask because you can see they are disabled The interactive process between the employer and employee basically negotiations to determine what is required and needed in regards to accommodations If employer does not participate in the process then they can be held to have failed to reasonable accommodate An employee who fails to participate in discussion about accommodation may forfeit protection against disability discrimination Whelan v Teledyne metalworking prods 2007 An employee who fails to inform the employer that an accommodation is needed may forfeit his right to that accommodation Kobus v Call Of St Scholatica 2010 Disability Discrimination Defense The ADA provides than an undue hardship is an accommodation requiring significant difficulty or expense which must be determined by considering all relevant factors including the size and financial resources of the covered entity See 42 USC Sec 1211110 The P bears the burden of proving a reasonable accommodation exists and then the D has the burden of proving that the accommodation would pose an undue hardship on the employer Borkowski v Valley Cent Sch Dist factors to consider under ADA when trying to prove undue hardship 1 Nature and cost of accommodation 2 Overall financial resources of facility persons employers effects on expenses and resources impact upon operation 3 Overall financial resources of covered entity size of the business and number of employees type and location and number of facilities 4 Type of operations of the covered entity composition structure functions of work place Supposed to use a common sense balancing of the costs and benefits in light of all the factors listed in the regulations No dispositive ruling on how many of these you have to show Proving he is an individual with a disability under ADA P s burden To prove job function was essential D s burden 8th circuit Accommodation is reasonable on its face P s burden Casespecific reason for why accommodation is not reasonable D s burden Undue Hardship on Employer D s burden Direct threat defense D s burden Screening consistent with business necessity D s burden The i0 Disabiiiiy Diggiimiiiiiom 64 ADA 103 b provides that the term qualification standards may include a requirement than an individual shall not pose a direct threat to the health or safety of other individuals in the workplace Direct Threat is defined by 1013 as a significant risk to the health or safety of others that cannot be eliminated by a reasonable accommodation 0 Ex elementary school teacher with active tuberculosis When determining direct threat courts have looked to medical knowledge nature of the risk transmission of disease duration of the risk infectious severity of risk potential harm to 3rd parties and the probability that the disease will be transmitted Arline case Chevron USA Inc v Echazabal US SC 2002 EEOC regulation authorizes refusal to hire an individual because his performance on the job would endanger his own health or others owing to a disability Issue whether the Americans with Disabilities Act of 1990 permits this regulation as well YES extends the statute to direct threats to yourself not only to others P wanted a job directly with Chevron but physical examination revealed he had Hep C which doctors said would be aggravated by continued exposure to toxins at Chevron s refinery Chevron wouldn t hire him directly and asked contractor to either reassign him or remove him from the refinery He later got laid off and brought suit for violation of ADA Chevron defended claiming that permitting him to work on the job would pose a direct threat to his health Chevron deference Agency regulation can be adhered to under the Chevron rule as long as it makes sense of the statutory defense for qualification standards that are jobrelated and consistent with business necessity 0 Chevron wished to avoid time lost to sickness excessive turnover from medical treatment or death litigation under tort law and the risk of violating OSHA The direct threat defense must be based on reasonable medical judgment that relies on the most current medical knowledge andor the best available objective evidence and upon an expressly individualized assessment of the individual s present ability to safely perform the essential functions of the job researched after considering among other things the imminence of the risk and the severity of the harm portended 0 Co can t just say that they think the employee has a diseasehave to get doctors involved and may before a battle of the experts Other direct threat examples uncontrolled diabetes epilepsy HIV Contagious diseases Deference to EEOC decisions page 575 ADA 1021b discrimination includes 3 Utilizing standards criteria or methods of administration that have the effect of discrimination on the basis of disability 6 Using employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individual with disabilities unless the standard test or other selection criteria as used by the covered entity is shown to be job related for the position in question and is consistent with business necessity 65 Alberts0ns Inc v Kirkinburg US SC 1999 Whether under ADA an employer who requires as a job qualification that an employee meet an otherwise applicable federal safety regulation DOT vision standards must justify enforcing the regulation solely because it s standard may be waived in an individual case NO 0 Albertsons hired Kirkinburg as a truck driver He has amblyopia in his left eye 20200 vision which leaves him with monocular vision Doctor erroneously certified that he met Dept of Transp standards so the D hired him Later doctor correctly diagnosed him and P tried to get a waiver if your visions was insufficient but had certain history and qualifications you could get a waiver on conditions of doing certain things but he was fired by D and they refused to rehire him once he got the waiver program through DOT not the company 0 Held the employer is not required to defend its decision to not participate in the waiver experiment wasn t official yet 0 Employers have to justify their use of quali cation standardsthat screen out or tend to screen out or otherwise deny a job or bene t to an individual with a disability Have to show that it is job related and consistent with business necessity 42 USC 12113a 0 Albertsons showing that the job qualification eye sight standard was not their own devising but that they were just applying the distant visual acuity standard of the federal motor carrier safety regulations Validity of these regulations are unchallenged as they have the force of law policies that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities Employer can say there was no intent to discriminate rely on job relatedness and business necessity as a defense Ex Sick leave policies Company s paid leave restricted to 14 days general skewing against those with disabilities who might need more But can justify based on business necessity Try to make undue hardship argument as well Special Problems Drug or Alcohol Users p 584 ADA Sec 104 provides that the term qualified individual with a disability shall not include a person who is currently engaging in the illegal use of drugs when the covered entity acts on the basis of such use Currently has been interpreted to be one month before job around the relevant time 0 Plain language of 104 states than an alcoholic who is currently using alcohol may be disabled under the ADA 0 b Provides safe harbors for those who used drugs those who have completed drug rehabilitation participating in a supervised rehabilitation program and no longer using drugs or if the employer thinks they are using drugs but they really aren t can t fire these people Medical Examinations and Inquiries Preemployment employer can t use medical exam or inquiry to determine whether a job applicant has a disability or the nature of severity of such disability But the employer 1 may inquire into the applicant s ability to do the job before making the job offer and 2 may condition an offer of employment on the results of a medical examination if certain conditions are met Everyone wanting the job has to be treated the same way can t make only one or two applicants take a medical exam The medical exam does not have to be specific or iobrelated but can include everything 66 0 Employer finds out person they made job offer to has a degenerative back problem Can t do the job anymore Do you have to go through the disability steps for this 0 If an employer asks an applicant questions that are lawful under the ADA and the applicant lies the employer is justified in discharging the employee when the lie is discovered Smith v Chrysler Corp I But what if the employer asks an illegallawful question and gets lied to Not positive But could show that person is untrustworthy I Illegal and Legal Questions on page 586 0 Postemployment medical exams and inquiries must be job related and consistent with business necessity I Employers can t require medical examinations and inquiries of current employees unless such examination is job related and consistent with business necessity 0 Psychological tests meant to identify a mental disorder or impairment are medical examinations but tests to measure personality traits like honesty and habits do not and Interference section 12203a no person shall discriminate against any individual because that person has opposed an act made unlawful by the ADA or because such person has participated in an investigation or proceeding under the ADA ADA antiretaliation provision is broader than Title VII Employee still has to go to EEOC and file a charge hostile work environment claim may arise when the P can show he was targeted for harassment either because of his disability or because of his request for accommodation Not sexual Ex hiding someone s wheelchair calls person names but are those negative Has to still be severe or pervasive Protected Relationships Sec 12112b4 prohibits a covered entity from discrimination against a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association When the employer discriminates against you nondisabled because you have a relationship with someone who is disabled Ex employer fires you because your son has a disability and they think it will affect you This is a violation of the ADA EEOC doesn t apply this to accommodation What associations would you include Parentchild wifehusband Would you extend it to friend Have to be able to prove that they are disabled not merely impaired and have to show that the employer knew of the relationship and the disability 67 Private Enforcement The Administrative Phase 1981 claims don39t have to be led with the EEOC Title VII ADEA ADA claims must be led with the EEOC within 180 days after the unlawful conduct occurred 300 days in a deferral state In a deferral state the charges must be led both with the state and the EEOC If it is led with the state rst and the plaintiff receives notice that the state has terminated it s proceedings the plaintiff has 30 days to le with the EEOC If the EEOC does not sue within 180 days from the ling of the charge the charging party may request a right to sue letter Once a party receives this letter they have 90 days to bring an action Private Enforcement Filing Suit Two requirements 0 A timely ling of the appropriate charge with the EEOC A timely ling of the court suit after the receipt of the right to sue letter A violation occurs the statute of limitations begins to run when a discriminatory decision is made and communicated to the employee not the date on which the adverse effects take place The statute of limitations begins to run when the employee knows or should know that a discriminatory action has occurred rsbl person One issue that can arise here is whether the acts can be considered to be one continuing violation Should the individual acts be linked and viewed as one act Look for continuity SC has held in a hostile work environment acts more than 300 days old are still part of the environment and are therefore actionable Damages must be mitigated If a plaintiff has replaced the job then the earned is set off from back pay If plaintiff could have replaced the job but didn39t then the set off is from what she could have earned To sue a plaintiff must have standing To have standing a plaintiff must generally be the person aggrieved by the unlawful practice There are two exceptions to this 0 Employees who are not the object of the charged violations have been able to sue so long as the complaint is framed in terms of harms owing to themselves as a result of the discrimination Organizations have been conferred standing to sue on behalf of their members so long as at least one of their members have been harmed by an alleged violation A plaintiff must sue the right defendant Courts have been liberal with this requirement The general rule appears to be that a defendant who is suf ciently implicated by the charge on which the action is predicated may be sued under Title VII 68
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