law school outline: employment discrimination


Employment Discrimination
I. Common Law: At-will employment
A. Codified in Cal. Labor Code �2922: Private employment with no specified term can be terminated by any party upon notice to the other.
1. Contrary to most other industrial democracies, which have tenure system based on property right.
2. No reason is required, but better to have some reason for the termination rather than no reason at all to rebut p �s claim, and better to have a record of discipline.
B. Contract can specify a term
1. Express K
2. Implied K (reliance on employment manual (disclaimable) or oral promises, so long as not too vague or indefinite).
C. Public policy exceptions
1. Refusal to hire is not protected � only discharge.
2. Whistle-blower statutes (protecting employees from retaliation)
3. Employer asking employee to do unlawful or perceived (reasonable belief) unsafe act.
4. Discharge for exercising a statutory right or employment privilege.
II. Statutory Protections (other than Title VII)
A. Age
1. Age Discrimination in Employment Act (ADEA) prohibits adverse employment action based on age over 40.
a) Uses Title VII analysis, but minimum 20 employees.
b) Age of the parties involved is a key component in proving that age was the motivating factor, e.g. firing someone over 40 and hiring someone younger, or treating someone over 40 different from under 40, and being able to prove that age was the reason, but not an essential factor.
(1) 41 yo fired for 50 yo is not discrimination - no reverse discrimination, but 50 yo fired for 41 yo is discrimination
c) Does not prohibit decision based on any other reasonable factor other than age.
(1) Physical ability to perform essential job requirements (statutory exception for firefighters and police), or when BFOQ, such as 35yo max hiring age for bus drivers, if D can show that all or substantially all of the class is unfit, and requirement is reasonably necessary for safe and efficient operation of business.
(2) Wage discrimination is not age discrimination unless wage depends directly upon age.
(a) Pension plan based on number of years with company rather than age means that employer can discharge employee to keep pension plan costs down, and not violate ADEA (does, however, violate ERISA).
(b) Deciding to hire an inexperienced (younger) person because the salary would be less is not prohibited, because the discrimination is on the basis of economic demands.
(c) Length of service is analytically distinct from age.
(3) Seniority is statutorily preserved as a basis that can be used for discrimination (i.e. most recently hired can be laid off).
d) Does not prohibit employer from observing the terms of a bona fide benefit plan, but plan cannot require involuntary retirement of employee because of age, i.e. due to rising insurance costs.
(1) Exception for high executives over age of 65 who get more than $44k/yr entitlement money, if compensated with retirement plan paid for by company.
(2) Offering less benefits to older employee due to increased cost of providing the benefits (i.e. health insurance) is ok, so long as the cost incurred on behalf of the worker is the same as workers up to 5 yrs younger. Older employee cannot be required to contribute more to a benefit plan than younger worker.
e) Older Worker Benefit Protection Act: Allows workers to voluntarily waive their rights under the ADEA, i.e. in exchange for severance pay. Employee has a 21 day period to consider such an offer, and a 7 day recession period.
f) Liquidated damages: If employer acts willfully, employee gets lost wages.
2. ERISA: Can�t fire someone to escape paying benefits.
B. Disability
1. Rehabilitation Act of 1973: Employers contracting with federal government must take affirmative action to employ qualified individual with disability. Prohibits discrimination against disabled by programs receiving federal money.
2. Americans with Disabilities Act of 1990 (ADA)
aa) Same scope as Title VII
a) Prohibits discrimination against qualified individual or those related to the individual because of actual or perceived disability in the areas of employment, public services, public accommodations, transportation and telecommunications.
b) Motive can be proven by direct evidence, or by showing that he is qualified individual, D knew of disability, p applied for position, and non-disabled person was hired.
(1) D �s concern for increased insurance costs due to disabled employee or employee�s disabled relatives is prohibited. However, the health insurance may limit coverage of pre-existing conditions.
c) Disabled individual
(1) Actual or perceived continuing physical or mental impairment or condition affecting one or more of the following systems: neurological, musculoskeletal, sensory, respiratory, speech, cardiovascular, reproductive, digestive, urinary, blood, lymphatic, skin, endocrine.
(a) Voluntariness of disability (i.e. obesity) does not disqualify.
(b) Treatment may be considered a disability if the treatment is medically necessary, not just an attractive option.
(c) Use of or addiction to drugs is not a disability, but alcoholism (as a disease) is. Employer may discharge for coming to work drunk in accordance with uniform policy, but must allow RA (leave for rehab) for employee to treat alcoholism if employer would allow leave for employees with other disabilities (e.g. cancer).
(d) Pre-emp. offer medical exams or inquiries about disability are not allowed, but can inquire about ability to perform job-related functions. Post- offer, employer can require all employees to get med and drug exams if job-related and consisted with business necessity.
(2) Which actually or as regarded by employer substantially limits [duration, manner or condition of] one or more of the major life activities of the individual: Including caring for one�s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, and arguably reproducing.
(a) For the ability to secure and retain work to be a major life activity, p must be disqualified from a class of jobs or a broad range of jobs in various classes (i.e. pilot with vision problems must be disqualified from a broad range of pilot jobs, not just passenger airlines).
(b) The limitation on the life activity must be present � not hypothetical or possible. Therefore, vision problem corrected by glasses is not a disability because the limitation is not present. Unless employer regards p has having a disability, which means p qualifies regardless of corrective measures.
d) Otherwise qualified: Without regard to the disability, p must be qualified to do the job. Examples: Education level, certification, physical requirements rationally related to job, etc., even if lack of qualification is caused by disability.
(1) Employer�s belief must be objectively reasonable, based on individualized inquiry (not generalization or stereotype).
(2) Employer can set reasonable physical requirements for a job which are rationally related to the job.
e) Who can perform essential functions of the job with (or without) reasonable accommodations
(1) Employer must make reasonable accommodations to known physical or mental limitations unless undue financial or administrative hardship. Employer doesn�t have to make major changes, and doesn�t have to remove essential function of the job.
(2) Inherent risk of injury to others which cannot be eliminated with RA.
(3) Types of accommodations
(a) Physical modifications to existing facilities
(b) Job restructuring
(c) Modifications of job application process
(d) Adjustments to provide equal benefits and privileges of employment.
(e) NOT: Sacrificing collectively bargained bona fide seniority rights of other employees.
C. Race: 42 USC �1981 (Civil Rights Act of 1866)
1. Protects the right to contract, including private, from discrimination motivated by race, regardless of which race is at issue.
a) Includes the making, performance, modification and termination of privileges, terms, and conditions of the contractual relationship.
b) Example: Denying black person same right to K as white person, or not hiring someone because they have an interracial marriage.
2. Requires proof of disparate treatment � not just impact.
3. Requires intent.
4. When �1981 action brought with Title VII action, legal elements are identical.
5. Right to jury trial
6. "Race" is defined as it was in 1866, which was very expansive, including ethnic ancestry.
7. Cannot be used against Federal employers, but ok for state and local employers.
D. Unionization: National Labor Relations Act
E. Marital status: California law
F. Veterans: Veterans Reemployment Rights Act � right to full reinstatement. OK to give veterans preference in employment.
G. Immigration Reform and Control Act: Prohibits employment of undocumented aliens, and prohibits discrimination in hiring and termination on basis of national origin for citizens and aliens formally intending to be citizens. Includes small businesses.
H. �1983: Implements constitutional due process rights, mainly to public employers.
I. Gender: Equal Pay Act of 1963. Men and women who perform equal work (strictly interpreted) must receive equal pay, unless difference is justified by system of seniority, merit, or production system, or any other factor other than sex.
J. Due process (public employment): Strict scrutiny applies for race and national origin; Intermediate scrutiny applies for gender; Rational basis applies for sexual orientation.
K. Sexual orientation: Not protected classification under Title VII, but as of 1999 it is protected by CA�s FEHA.  Sexual orientation discrimination in housing and employment information.
III. Title VII of Civil Rights Act of 1964
A. Employees cannot waive their rights under Title VII
B. Employers
1. Companies with 15 or more employees (part time is ok) for each working day of at least 20 weeks (not necessarily consecutive) in the current or preceding calendar year.
a) "Employees" does not include the employers (such as partners in law firm)
b) Excludes government, enlisted military, Indian tribes, independent contractors, volunteers.
c) Excludes bona fide membership clubs which are tax exempt and for social, recreational, literary, scientific or political objectives, and which has some meaningful conditions that limit or screen membership.
d) Includes labor organizations (membership, referral, causing employer to discriminate, processing grievances) and employment agencies (who secure employment for defined employers; referral, honoring discriminatory requests from employers).
e) Includes foreign subsidiaries who employ US citizens overseas.
2. Affecting interstate commerce (broad � encompasses all employers)
C. Employment actions covered
1. Treating people in a way which would deprive or tend to deprive any individual of employment opportunities, or otherwise materially adversely affect his status as an employee, based on a protected classification.
2. Hiring, including advertising citing preferences (men only, college graduates, students).
3. Promotion
4. Termination
5. Compensation
6. Terms, conditions, or privileges of employment (Health insurance and other benefits, if provided, must be sex and race neutral.)
D. Discrimination because of protected class
1. Race & color: Includes discrimination because of p association with people of a particular race (i.e. interracial marriage).
2. Religion
a) Scope: Bona fide moral or ethical beliefs as to what is right or wrong which are sincerely held with strength of traditional religious views. Not purely secular view.
(1) Yes: Abortion, conscientious objector, death penalty views, atheism. Clothing styles and grooming standards, time off for Sabbath.
(2) No: KKK, political party affiliation or activities.
b) p �s burden to demonstrate bona fide religious belief which conflicts with D �s employment requirements; that p has informed D of belief and conflict; and that employee is disciplined in some way for failing to comply with requirement (loss of pay, threat of discharge, etc.).
c) Requires employers to offer reasonable accommodations for religious practices and beliefs. Doesn�t have to be best available or one suggested by p .
(1) Refusal to make reasonable accommodations can be harassment.
(2) Unpaid leave is an RA, unless paid leave provided for all purposes except religious ones.
(3) Defense if RA would cause undue hardship: More than a de minimis cost to employer, which has an actual adverse impact on conduct of business.
(a) Undue hardship can apply when remedy requires other employees to make modifications, because that is favoring religious beliefs and disfavoring nonreligious beliefs (establishment of religion).
(b) Employer must allow employees to wear religious attire, unless it would undermine the employer�s business, i.e. public school teachers, or employees who must wear uniforms (police, fire).
(4) Defense if RA would require employer to disrupt bona fide seniority system or collective-bargaining agreement. But RA includes excuse from union membership where that violates religion.
(5) Court must not do anything that supports or establishes religion.
d) Establishment defense: Religious organizations (very close ties to organized religion) can discriminate on the basis of religion in all of their activities.
(1) Factors for first amendment analysis: Magnitude of impact on free exercise; Compelling state interest; Extent to which exemption to Title VII would impede statute�s objectives.
(2) Government can regulate anti-social behavior.
(3) Government can regulate discrimination on basis of protected classifications other than religion in the purely secular activities, so long as the protected classification isn�t required by the religion (i.e. a BFOQ).
(4) Government cannot interfere with selection, pay, assignment or dismissal of members of clergy.
e) Free exercise
(1) Applies to both belief and non-belief (protects atheists).
(2) Employers can have religion in the workplace, but employees who work for secular employers cannot be required by employers to practice religion at work, unless employer can show undue hardship. Title VII protects employees on the basis of religion and non-religion.
(3) Factors used to see if employer�s free exercise rights are infringed by Title VII contrary to free exercise clause: Magnitude of statute�s impact on exercise of religious belief; Compelling state interest in justifying burden; Extent to which exception from Title VII would impede objectives of statute.
f) State law requiring exception from weekend work for those with religious exceptions would be invalid due to establishment of religion.
3. Sex
a) Gender motivated pay differences between men and women are illegal even if the work performed is not strictly equal.
b) Includes treating employees differently because of pregnancy, childbirth or related medical conditions.
(1) Employer who chooses to provide provides health benefits to employees and/or dependents must provide equal benefits between the genders (i.e. pregnancy health care benefits). Otherwise, benefits given to married male employees would be less comprehensive than protection afforded to married female employees (in regard to the dependents), and less favorable to women employees with regards to pregnancy.
(2) Pregnancy-related conditions must be treated as favorably as other medical conditions.
(3) Fetal protection: Company may not treat pregnant or fertile woman differently in an effort to protect fetus from harm. That is a choice to be made by the woman. Prohibited because it treats women different then men. Permissible if pregnancy actually interferes with employee�s ability to perform job.
(4) Pregnant employee who is no longer able to perform duties can be temporarily relieved, just as any employee who is unable to perform the job. Exempting pregnant employee from performance standards may be sex discrimination against men.
(5) Guerra and PDA allow states to require limited favorable treatment to pregnant employees, such as extra time off even after the pregnancy disability ends.
(6) Childrearing, parental, and unpaid maternity leave granted to females must be equally granted to males, on the same terms.
c) Does not include sexual or sex-related behavior (i.e. discharged for having sex with coworker).
d) Act protects individuals, not groups, and therefore group characteristics (women have longer life span) cannot justify disparate treatment (higher insurance rates).
e) Does not include sexual orientation, because not objective or intent of Congress. But court has held that women cannot be terminated for being "too macho."
f) Specific examples
(1) Airlines can�t hire only pretty looking women as flight attendants, and can�t fire overweight attendants, because "sex" motivates that action (desire for pretty women vs. pretty men).
(2) Failure to invite female associate to become partner actionable when promised at outset of employment.
(3) Can�t fire unmarried pregnant women based on immoral conduct unless men are treated exactly the same (fired for fathering child out of wedlock).
(4) Can�t fire a woman for having an abortion, and must grant sick leave on same terms as other medical conditions. Insurance doesn�t have to cover.
4. National origin
a) Title VII permits employer hiring only citizens, but if he hires noncitizens, he can�t be choosy.
b) Does not include discrimination based on ethnic or sociocultural traits (i.e. prohibiting "corn row" hair styles, which are predominantly worn by African-Americans).
c) Does not encompass citizenship; but very broadly encompasses ancestry (such as discrimination against people with Spanish surnames), including cultural heritage and geographic origins.
d) English-only rules
(1) Not considered national-origin discrimination.
(2) EEOC considers English-only rules as creating a discriminatory working environment.
(3) Requiring English fluency is ok if it is a business necessity for communication, safety, etc.
IV. Types of discrimination and their defenses
A. Facial discrimination: Express use of proscribed classification to treat people differently in employment practices.
1. Good cause, business necessity, neutral "plus" factor, and benign motivation are not defenses. Nor is a valid generalization about a group, because VII protects individuals, not groups.
2. BFOQ (Bona Fide Occupational Qualification) affirmative defense:
a) Classification is essential or reasonably necessary to normal operation ("essence") of the business.
(1) Authenticity: Actor, ethnic restaurant, nursing care, thin person at diet center.
(2) Danger to third parties (but not fetuses) or employer.
(3) Customer or coworker preference not sufficient, unless historic, religious, or cultural reasons cause customers to refuse to deal with business.
(4) Discharge of unwed pregnant employee under Club�s "role model rule" justifiable where Club�s activities included programs aimed at prevention of teenage pregnancy.
b) Methods of individual evaluation are not feasible (to prevent the classification from being overbroad), and all or nearly all of those excluded would not meet qualifications.
c) No reasonable, less discriminatory alternative available.
d) Not available for racial discrimination, except Indians at or near Indian reservation.
3. Affirmative action
a) Not a true defense, but treated as one.  VII prohibits all discrimination, but the "spirit" of the statute permits AA.
b) Requirements
(1) Race or gender situation.
(2) Formal documented plan.
(3) Voluntary between private parties, or as a judicial remedy in especially egregious cases.
(4) Temporary in duration � designed for attainment, not maintenance.
(5) Designed to eliminate traditional patterns of racial segregation and to remedy underutilization (conspicuous imbalance) resulting from prior discriminatory practices.
(6) Plan must not unnecessarily trammel interests of majority employees, i.e. discharge to replace.
(7) Minority status can be used as a plus factor or tie breaker for hiring or promotion, but not layoffs.
(8) Can�t use different cutoffs for employment related tests based on protected status.
c) Executive Order 11246 requires employers with 50 or more employees contracting with government for more than $50k to institute AA to hire people in proportion to job market.
d) EEOC protects employers who choose to use AA programs.
e) Public employers � subject to Constitution
(1) Compelling government interest: Prior discrimination by governmental unit in question.
(2) Narrowly tailored to achieve goal: Using minority status as one factor.
(3) Must not unnecessarily trammel interests of white employees.
f) Quotas are ok (Bakke quota prohibition was based on Con Law � not Title VII)
g) "Bottom Line" is not a defense, i.e. where company says "yes we discriminate in our hiring practices, but our company is still very diverse."
B. Disparate treatment
1. Individual
a) Prima facie case
(1) Hiring & promotion: p in protected class, p applied for job, D had vacancy for which it was seeking applicants, p was otherwise qualified for position, p denied position, D continued to seek applicants or filled position with person from different class.
(2) Discharge & discipline: p in protected class, p performing at level of D �s legitimate expectations, p discharged or demoted, D replaced.
(3) D can escape liability by showing nondiscriminatory reason actually used which is rationally related to legitimate employer concerns, subject to p showing that D �s reason was pretextual.
b) Prejudicial statements are evidence of motivation.
c) McDonald Douglass / St. Mary�s
(1) No direct evidence exists, but evidence that does allow you to infer discriminatory intent.  i.e. hiring non-minority who is less qualified to replace a more qualified minority.
(2) St. Mary�s (two tests): (1) Showing of pretext allows but does not require finder of fact to find for p . BOP remains with p throughout the case, and just because employer hasn�t proffered a credible reason, burden remains with p . (2) If p shows pretext PLUS shows other evidence of discriminatory intent, then p wins, but this is difficult because it effectively requires p to disprove any possible defense.
d) Pricewaterhouse / �91 CRA
(1) Mixed motive: Some direct evidence exists of animus, but also some nondiscriminatory reasons. PW says that burden shifts to D to show that he would have reached same result absent illegal consideration. �91 CRA says that once p has shown improper motive, he has a right to declaratory judgment, costs, attorneys fees, injunctive relief, but D can escape damages by showing that D would have reached same result regardless of improper motivation.
(2) Nondiscriminatory reasons for discharge which were not known by employer at the time of discharge do not establish mixed motive, but may be a factor in determining the remedy.
2. Systemic discrimination (pattern or practice) � Improper motivation.
a) Facially neutral policies coupled with intentional systemic discriminatory practices, resulting in pattern or practice of disparate treatment which is motivated by protected classification.
(1) Direct evidence of specific instances; plus
(2) Statistics (actual employment vs qualified labor market), based on statistical significance and standard deviations (in conjunction with other direct evidence) which rules out the possibility of chance.
b) Once systemic discrimination is shown, affected individuals (including those who would have applied but for employer�s discriminatory reputation) are presumed to have been discriminated against. D must show legitimate reasons (good faith and hiring "best qualified" not good enough), or attack statistics.
c) Class action?
C. Disparate impact
1. Neutral policies (intent or motive not a factor) which disproportionately treat groups differently (Note: Court has not yet held if this analysis applies to ADEA).
2. p must show [statistical] evidence that the practice has caused exclusion based on protected classification.
3. Testing
a) Education standards closely related to job skills and degree requirements which result in disproportionate exclusion of protected group. Acceptable for high-level professions, but not for lower level semi-skilled jobs.
b) Objective employee testing
(1) Adjustment of scores, use of different cutoff scores, or otherwise altering results of tests on the basis of protected class is unlawful.
(2) Tests must demonstrably measure the individual for job performance.
(3) Testing is ok if employer formally validates the tests which seeks to determine whether discrete selection criteria predict actual on-the-job performance. This must be done with objective statistical significance.
(a) Content validity: Test replicates essential portions of the job.
(b) Criterion validity: Statistical relationship between scores on test and on objective criteria of job performance.
(c) Construct validity: Test for psychological trait or characteristic which is necessary for successful job performance.
(4) Vertical testing program requires that employee pass one test before advancing to next test, which means if one test is discriminatory, it really screws things up. Each component is analyzed for impact. Horizontal testing program requires employees to take all tests, and then scores are combined. Analyzed as a whole, as one employment practice.
(5) Four/fifth�s rule: Test is ok unless minorities are accepted at less than 4/5ths the rate of whites.
4. Nepotism and relationships
a) Preferential treatment to relatives or friends is permissible unless the practice perpetuates the imbalanced composition of the work force. Secretive or very informal hiring procedures often indicates problems.
b) Policies prohibiting inter-company relationships are ok unless evidence that it discriminates against women.
5. Ten days disability leave max would disparately impact women who give birth to children, unless business necessity.
6. Business justification (necessity) is a defense, if D can show that the practice has manifest relationship to job performance (i.e. testing validation) (Briggs and Ward�s Cove cases).
a) Availability of alternative practices to achieve the same business ends, with less discriminatory impact, negates this defense.
b) Customer preference is not a business necessity, unless it affects job performance.
c) Not available for racial discrimination
D. Environmental
1. Grooming
a) Must apply equally to everyone and/or reasonably related to safety or legitimate employer concerns. Generally can�t just be cosmetic unless BFOQ.
b) Differences in impact between genders or races is ok because grooming doesn�t affect immutable characteristics or significantly burden either class.
c) Religious: Reasonable accommodation required if employee cannot with grooming or uniform comply due to bona fide religious beliefs
d) Race: Prohibiting hairstyle unique to one race (e.g. corn row) permitted because hair is easily changed characteristic, and not immutable. Reasonable accommodation required if employee cannot comply due to race-based disease (skin condition that predominantly affects blacks)
e) D defense when necessary for job, i.e. gas mask requires no beard, distinctive uniform, or public school teachers can�t wear religious attire to work.
2. Harassment
a) Claim exists where an employer creates or tolerates severe or pervasive mistreatment that results in a hostile or abusive working environment "because of" protected class.
b) Quid pro quo (tangible consequence; Priest case): Benefit conditioned on sexual favors, or detriment (adverse action) for refusal of sexual favors.
(1) Threats must be carried out to the point where there is a tangible employment action, otherwise use hostile work environment.
(2) Vicarious liability applies via agency theory � need not show employer negligent for supervisor�s actions.
c) Hostile environment (Stacks v. Southwest Bell) which is severe or pervasive such that a reasonable person and the actual employee (objective & subjective) finds the work environment offensive, abusive, hostile or intimidating.
(1) Does not usually apply to English-only rules because such a policy does not [normally] lead to an abusive environment.
(2) No actual injury required.
(3) Supervisor�s evaluative comments (lazy n___) which is connected closely in time or logic to employment decision are actionable, but descriptive comments (little old lady) is not. In other words, a lack of sensitivity is not actionable, nor is a single isolated incident.
(4) Employer has affirmative defense to (vicarious) liability to say that reasonable care was taken (i.e. anti-harassment policy, correction upon knowledge), and employee didn�t exercise reasonable care to avoid harassment (use of effective complaint procedure).
d) Oncale: Same-[sex or race] harassment is also actionable, because statute is based on discrimination "because of [sex or race]", which applies to conduct based on [sex or race], regardless of the characteristics of the parties. p must still prove that sex was the causation � which may be harder to prove in same-sex cases than opposing-sex cases, but can be done if person of other gender would not have been similarly treated. CA�s FEHA provides greater protection because "sexual orientation" is the protected class, not just "sex".
e) �1981 also provides remedy for racial harassment.
f) No harassment when p encouraged behavior.
E. Retaliation
1. All of the anti-discrimination statutes have anti-retaliation provisions, protecting p �s from employment practices because of complaints.
2. "Participation" in proceedings is protected
a) Includes filing of charge or lawsuit, giving testimony, gathering evidence.
b) Allegations made are absolutely protected, even if false and malicious. However, if the allegations are made in non-judicial proceeding, employer can sue for defamation if suit is not retaliatory.
c) Public policy: Employees often unrepresented, discipline would have chilling effect, EEOC proceedings intended to be confidential.
3. "Opposition": Reasonable vs. unreasonable conduct.
a) Reasonable opposition is protected: Verbal objections to supervisors, filing complaints, circulating petitions, writing letters to legislatures, publishing advertisements, statements to media, striking, picketing. p �s good-faith belief that he is engaged in protected expression is considered..
b) Unreasonable unprotected opposition: Refusal to work, trespass, violent behavior, blocking access, work stoppages, false and malicious public statements, undermining supervisor�s authority.
4. Disloyalty
a) Threatening to file a claim ("opposition") is always protected so long as good faith reasonable belief that employer�s action violates Title VII and actions are reasonable.
b) Actions taken prior to filing, such as gathering evidence or interfering with supervisors work is actionable.
c) Once a claim has been filed (or about to be filed), taking action ("participation") is protected unless the activity would normally result in termination.
5. Burden: Prima facie case
a) Engaged in statutorily protected expression (opposition to seemingly [reasonable belief] unlawful employment practice)
b) Adverse employment action
c) Causation between expression and employment action
d) D then shows nondiscriminatory legitimate reason for action, and p can show pretext.
F. Seniority (bona fide system)
1. Defined: System which gives employees increasing protection or benefits as tenure passes.
2. Protected by VII �703(h).
3. System must be formalized, and not fundamentally different from common seniority systems.
4. It�s ok if the system perpetuates the effect of prior discrimination or freezes the status quo, because the legislature specifically considered that problem before enacting the defense.
5. System must be applied evenly, neutral on face, doesn�t have its genesis in discrimination, and application is rational.
6. Defense applies both to pre-Act and post-Act systems.
7. COA exists when hired, subject to system, or injured by system.
V. Making a case
A. p prima facie case
B. D rebuttal and defense
C. p must then show that D �s reason was pretextual (false) for unlawful discrimination and show direct evidence of D �s real discriminatory reasons.
1. Dissimilar treatment of similarly situated persons who do not have characteristics in question.
2. Discriminating based on protected factor PLUS nonprotected factor (gender plus having children) is still unlawful because VII doesn�t require that the discrimination be based "solely" on protected factor. ADA does say "solely" but it isn�t interpreted that way.
3. Not applicable when D �s motive is irrelevant (facial discrimination and disparate impact).
VI. Enforcement: EEOC
A. Private employment
1. Clock begins ticking at time that the employee has a cause of action, i.e. first act which clearly and inevitably would result in an unlawful action. Usually this is when the employee is given notice of the action, i.e. the termination notice.
a) Pay discrimination: Each paycheck is actionable, up to two years prior to filing of suit.
b) If it�s a pattern of continuing violations, when plaintiff knew or should have known that he is being discriminated against. Factors include subject matter, frequency, and degree of permanence.
2. State: File claim with state equal employment opportunity agency within 180 days, or with EEOC if no state agency. Although realistically, if you don�t file the state claim in time, i.e. on day 181, they will issue denial, and you can still file the claim with EEOC.
3. EEOC
a) File with EEOC according to the following schedule:
(1) Under all circumstances, claim must be filed within 300 days. The 300 day limit means that really you have to file within 240 days, in order to allow for the 60 day state limit to pass.
(2) If state relinquishes claim, file within 30 days after relinquishment. CA gives filers the option of filing with both state and EEOC, and having CA relinquish automatically, so that filer has choice of jurisdiction.
(3) If state doesn�t relinquish claim, must wait 60 days before filing (to allow state to process claim if they wish).
(4) Claim itself is relatively informal: Name, employer, nature of discrimination, basis for discrimination, time and place of discrimination.
b) EEOC serves charge on D within ten days.
c) Undertakes informal investigation, and if reasonable cause, try to resolve claim through mediation, conference, conciliation and persuasion.
d) EEOC can file suit against D , but not required to do so. No time limitation on when EEOC can bring that suit. Such a suit would preclude a private action, and p should intervene in the suit.
e) After 180 days of filing with EEOC, p can either wait for EEOC to finish disposing of the matter, or can demand from the EEOC a right to sue letter, even if EEOC hasn�t disposed of the matter.
4. Federal Court
a) Once EEOC issues a right-to-sue letter, p has 90 days from date party receives notice to (formally) file suit in Federal Court.
b) Scope of Federal Court complaint is limited to the scope of the charge filed with the EEOC.
c) EEOC, state court and arbitration decisions are not binding on the courts, which do a trial de novo.
d) Court can appoint an attorney to represent p .
e) Either party can demand jury trial when p seeks compensatory or punitive damages.
B. Public employment
1. Employee complains to federal agency
2. Formal hearing within the agency
3. Appeal to EEOC
4. Private action in federal court if EEOC affirms agency decision.
5. NOTE: Age discrimination p �s can simply file suit in federal court within 180 days of the action, after giving 30 days notice. Equal Pay Act and �1981 p �s can simply file suit in federal court.
VII. Remedy
A. Goal: Make p whole (�706(g)).
B. Injunctive relief
1. Prohibit employer from continuing acts
2. Require affirmative action, for pervasive, blatant and/or egregious violations, even if it doesn�t impact the original victims due to the passage of time. Quotas are frowned upon, but ok in particularly egregious cases.
3. Hiring order (unless not qualified, mixed motive case, or other legitimate reasons which don�t frustrate purpose of the Act, not just because D would have to rearrange positions)
C. Retroactive seniority (benefits and competitive), even if it would lessen the seniority of the other employees, except in exceptional cases.
D. Damages ($)
1. Compensatory available for intentional discrimination. Includes actual costs of treatment, humiliation, loss of credit, family disruption, moving expenses, job search, etc.
2. Punitive available in case of malice or reckless indifference to p rights. Depends on D �s motives.
E. Pay (not available in mixed motive case), including all forms of compensation:
1. Back pay: Judge�s have very little discretion to deny.
2. Front pay: Prospective pay until p finds substantially equivalent job.
3. Offset by p �s mitigation (i.e. income from substantially equivalent job). p has a duty to make reasonable attempts to mitigate.
F. Attorney�s fees to prevailing p , at discretion of judge (almost always awarded).
1. Based on actual hours spent on prevailing issues, multiplied by reasonable hourly rate. Reasonable rate established by what other attorneys in the area with similar skills would charge. Can be adjusted based on difficulty of case.
2. Contingency fee attorney can claim either statutory fees or contingency fee.
3. Expert witness and consultant fees are not recoverable.
4. Prevailing D can get fees only upon showing that p �s action was frivolous, unreasonable or without foundation. Standard almost never met.

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