Employment outline based from Westlaw info
To Whom Does Title VII, ADA, EPA, ADEA Apply
A.
Must have 15 employees (ADEA: 20 employees) (EPA-adheres to FLSA-employer with
interstate commerce)
B.
No individual liability under Title VII
C.
Employees v. Independent Contractors
Employer’s control and direction
Skills required and if skills are obtained in the work place
Responsibility of costs of equipment
Method and form of payment
Length of job commitment and expectations
Procedural Defenses
Must Exhaust administrative remedies
1.
Title VII
2.
ADEA
3.
ADA
A. Statute of limitations
1. Title VII-180 or 300 days
2. Equal Pay Act-2 or 3 years if willful to file a claim after receiving pay check, can recover up to this
point too
3. ADEA, ADA- 180 or 300 days…ADEA- can file lawsuit 60 days after filing eeoc charge
4. Ledbetter Act-300 days (or 180) to file from received paycheck , may recover up to 2 years
a. Ledbetter Act (applies to all protected categories) (2009) reverses Ledbetter case: A
plaintiff can now bring a claim for a discriminatory compensation decision or other
practice, no matter how long ago it occurred, so long as it resulted in decreased pay
within the limitation period. As soon as you receive a paycheck, you have 300 days
from the date of receipt under the EPA. Each paycheck is a separate and distinct act of
discrimination. a. Before 2009? Use old standard. NOT new.
b. Before: had to file claim within 180 days of an employer’s decision to pay a worker
less—even if the worker didn’t learn about the unfair pay until later
B. Claims included in administrative charge
a. must check of all claims that apply…EEOC will only reasonably infer for race, color and
national origin
C. 90 days to file in court after Right to Sue letter
D. Arbitration Clause
a. If an employment relationship is subject to a collective bargaining agreement with arbitration
clause, employees must vindicate their rights in arbitration. Penn Plaza v. Pyett. Supreme Court in Penn
Plaza said that arbitration is a viable forum for employees to pursue claims of discrimination; employees
are not giving up any rights, they are just required to pursue them in a different forum. Union
membership = agreement.
i. How to challenge arbitration clause: Show arbitration is procedurally and
substantively unconscionable.
1. Procedural unconscionability deals with the formation of the agreement (sign this or
you’re not working here – contract of adhesion – not enough to have agreement voided
when present alone).
2. Substantively unconscionable (unfair in practice – draconian, binding on only one
party – rules must be the same for both parties).
b. Steps under arbitration clause: file grievance with the union. If union says they don’t want to
pursue, Follow administrative procedures to invoke help of EEOC
b. Other possibilities/remedies to get in court despite the existence of the arbitration clause:
Sue the union for (1) breach of duty of fair representation claim [are they really
representing your interests by not following this grievance claim?]; (2) discrimination;
OR get the EEOC to file a claim on your behalf. EEOC is not a party to the arbitration
agreement. Employer cannot hold EEOC to a contract that they are not a part of.
McDonnell Douglas
a. Applies to SJ proceedings
b. Burden of persuasion always with Plaintiff-under both pretext and mixed motive
1. Mixed-Motive (affirmative defense)
a. HOW TO PROVE: Once employee proves by preponderance of evidence that protected
class was motivating factor for employment practice, burden of proof switches to the
employer to establish that plaintiff would have suffered adverse action even in the
absence of discrimination. (Employer must prove this by a preponderance of the
evidence.)
b. Jury instructions
c. Depends on evidence presented
d. Does evidence support a finding that more than one factor played a role in the adverse
employment action?
e. If judge determines that evidence could demonstrate that discriminatory animus was the
sole cause, or played no role, jury asked to determine if challenged action was taken
because of prohibited reason
f. If evidence supports that discrimination is one of two or more reasons-mixed motive
instruction
i. Employer escapes damages if it would have taken the same action (has to prove
lawful factor was the motivating factor) (d has burden pf persuasion to prove this)
ii. However, employer liable for attorneys fees, declaratory relief, and order
prohibiting future discrimination if P is successful
iii. Burden of persuasion shifts
2. After-Acquired Evidence: If employer discovers evidence, as of that date of discovery, as long
as it would support a legitimate termination, it cuts off the plaintiff’s damages. Limits back pay up
to the time the evidence was acquired (stops clock). McKennon v. Nashville Banner Publishing Co.
3. Cat’s paw theory of liability: employer remains liable for the discriminatory actions of lower level
supervisors and managers who influence the ultimate decisions of those above them in the
employer’s organizational hierarchy. Staub v. Proctor Hospital.
a. A plaintiff may establish cat's paw liability by showing that:
i. The supervisor intended to cause an adverse employment action.
ii. the supervisor's discriminatory action is a proximate cause of the ultimate
employment action
b. - How does person who makes decision to terminate avoid company being liable under
cat’s paw? 1) Conduct their own investigation, look objectively at situation and see if
plaintiff actually violated policy and if it is practice to terminate those who violate the
relevant policy.
i. Gets rid of discriminatory nexus/motive that leads to adverse employment
action.
c. Cat’s paw applies to retaliation cases as well
Title VII Disparate Treatment Analysis
1. McDonnell Douglas
No Direct evidence
2. Must exhaust admin duties first and sol
3. PRIMA FACIE CASE (BURDEN OF PERSUASION on P)
a. plaintiff was a member of the protected class;
b. qualified
c. plaintiff suffered an adverse employment action (materially alters terms and
conditions of employment)
d. That a causal connection exists between them being a member of a protected category
and the adverse employment action (ex. fired because of protected status).
a. Can prove by temporal proximity, direct evidence, inferences.
4. IF PLAINTIFF SATISFIES PRIMA FACIE CASE
a. Defendant must offer legitimate non-discriminatory reason for adverse action
(BURDEN OF PRODUCTION)
b. Plaintiff bears burden of demonstrating reason was pretextual
i. court finds discrimination by concluding the legitimate nondiscriminatory reason not the real reason for its decision
ii. Merely showing the employer was lying about nondiscriminatory reason
is not enough to show plaintiff was victim of discrimination. Must prove
by a preponderance of the evidence that you were subject to
discrimination. St. Mary’s Honor Center v. Hicks
iii. the employer’s stated reason is unbelievable, that it’s inherently weak, or
that it otherwise fails to sufficiently explain the challenged action
Title VII Disparate Impact Analysis (not applicable to section 1981 cases)
1. Must exhaust admin duties and sol
2. Prima Facie Case
a. an identifiable, facially-neutral personnel policy or practice (specific)
b.
a disparate effect on members of a protected class (use of statistics)
c.
a causal connection between the two
Difference from disparate treatment
A. Ultimate fact to be proved-discriminatory impact not discriminatory intent
B. Shift in burdens of production and persuasion (D has burden of proof persuasion)
C. Plaintiff-burden to prove adverse impact on a particular group of an identifiable
employment practice
D. Defendant-burden of persuasion to justify disputed practice- “job related for the
position in question and consistent with business necessity”
-
Must involve a 1) characteristic that’s important to job performance, and 2)
accurately predict or significantly correlate with the characteristic
E. Plaintiff has burden to prove pretext—can do this by showing alternative
discriminatory practice that D knew about and refused
F. D can argue the other method was not ideal due to cost etc…
Title VII Harassment Analysis
1. Must exhaust admin duties and sol
- Hostile Work Environment Prima Facie Case
a. Plaintiff must establish that the alleged harms suffered at the workplace arise from
conduct that (don’t need to be part of protected group to assert this claim):
i. Unwelcome
ii. creates an environment that a reasonable person would find hostile or abusive;
iii. the plaintiff subjectively perceives as hostile or abusive
iv.
creates such an environment because of a protected characteristic
v. Severe or pervasive
1. "the 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.… no single factor is required"
**** a charge alleging a hostile work environment will not be time barred if all acts constituting the
claim are part of the same unlawful practice and at least one act falls within the filing period; court is
precluded from applying equitable doctrines that may toll or limit the time period.
-Defense: Faragher Defense (if bad actor was supervisor)

No tangible adverse employment action was taken against the plaintiff.

The employer exercised reasonable care to prevent and promptly correct the harassing
behavior.

The plaintiff employee unreasonably failed to take advantage of any preventative or corrective
opportunities provided by the employer or to otherwise avoid the harm
To use this defense, employers must demonstrate that they took reasonable care to prevent
harassing behavior at their workplace. To demonstrate this, employers should implement
and widely disseminate a policy prohibiting harassment and providing an adequate
procedure for reporting it (see Faragher, 524 U.S. at 807). The reporting procedure outlined
by the policy must be easily accessible to the employee and not carry undue risk or expense.
It must also ensure that an employee does not have to report the harassment to the actual
harasser (for example, in case the supervisor is the harasser at issue, the policy must provide
an alternative to reporting to a supervisor)
-other specific defense: EEO Harasser—D treats everyone the same way
-Quid Pro Quo Prima Facie Case
(1) Unwelcome requests for sexual favors by a heterosexual member of the opposite sex or a
homosexual member of the same sex;
(2) Employee’s refusal to honor that request or submission to this demand under duress;
(3) An adverse employment decision or loss of tangible job benefit and
(4) Evidence of causal relation between refusal and adverse decision.
**An unfulfilled threat of tangible economic harm may have the appearance of quid pro quo
harassment (for example, a threat that an employee will be demoted or suffer other tangible
employment consequences if they do not submit to a supervisor's sexual advances), but because the
threat is not realized, the harassment is legally considered hostile work environment harassment
**Can’t use Faragher Defense if P suffered an tangible employment action
**quid pro quo can apply to religion cases
Harassment in general
**Employer can be liable for co-workers of employees, or an anonymous harasser, or third parties if
they knew or had reason to know and failed to do anything about it
**Cat’s paw liability applies too
**Who’s a supervisor? An employee is a “supervisor” for purposes of vicarious liability under Title VII
only if they are empowered by the employer to take tangible employment actions against the victim, to
effect a significant change in employment status, such as hiring, firing, failure to promote, reassignment.
Title VII Sex Discrimination- applies to men and women
-Disparate treatment and impact- Title vii analysis
-must exhaust admin duties and sol
- Sex definition includes- gender stereotypes, sexual orientation, and transgender, pregnancy
PREGNANCY DISCRIMINATION (1978): PART OF TITLE VII. Title VII was amended to add the
ANALYSIS FOR PRIMA FACIE CASE OF PREGNANCY DISCRIMINATION
a) Employee must show that employer had actual knowledge of employee’s pregnancy;
b) Plaintiff must show they were qualified for their job;
c) Must show they suffered an adverse employment discrimination; and
d) Must show a nexus between pregnancy and adverse employment action.
Religious Discrimination
-Must exhaust admin duties and sol
-Disparate treatment and impact- title vii analysis
1) Sincerely held religious belief that conflicts with job requirement or practice,
2) suffered adverse employment action
3) Causation
-Duty to accommodate
a. employee needs to notify employer of religious accommodation and can only ask for
accommodation if religion comes into conflict with a job requirement
b. an employer can be held liable if it acts with a motive to avoid an accommodation, even when
it has an unsubstantiated suspicion that the accommodation might be needed---this is likely to
when an employer has notice of applicants or employees religious needs or know of the conflict
between work requirement and religious practice.
Accommodation Prima Facie claim:
1)
2)
3)
4)
Religious belief that conflicted with an employer require
Informed employer about conflict
Suffered adverse employment action
need for accommodation was the motivating factor for the adverse
employment action
-burden shifts to D to show they either reasonably accommodated the employee or applicant or they
couldn’t reasonably accommodate without causing an undue hardship
-burden shifts to P to show pretext
Defenses: BFOQ, ministerial
1. Ministerial (affirmative defense) grounded in first amendment law----bars discrimination suits
against religious employers by employees who qualifies as ministers, whether employee is a
minister requires a fact intensive inquiry
a. in general, a minister is someone who has special responsibilities or advances matters
of faith within or on behalf of the institution
2. Religious. Org (exempt) religious orgs are specifically exempt from religious discrimination
provision in title vii , but they can be held liable for other categories like sex discrimination. This
only applies to orgs that are primary religious----determination involves highly fact specific
inquiry.
3. Religious educational institution (exempt)-if institution is wholly or substantially owned,
supported, controlled, or managed my a religious organization, association or society or, if the
institutions educational curriculum is aimed to propagate a particular religion.
Title VII National Origin Discrimination
-must exhaust admin duties and sol
1) country from which a person, family, or ancestors come from OR 2 ) physical, linguistic, or other
characteristics of a national group
-Disparate Treatment and impact- Title VII analysis
-English only polices could be okay, if its limited….however if broad the policy can create a hostile work
environment
-BFOQ applies
Retaliation
-Must exhaust title vii duties and sol
-P must demonstrate only that it had a good faith, reasonable belief that the underlying challenged
actions of the employer violated the law.
1. Prima facie case:
(1) participation in a protected activity known to the defendant;
a. ex: Complaint about some unlawful activity. Filing with EEOC. Testifying in front of the
EEOC. Assisting with an investigation. –
b. complaint doesn’t have to be in writing…verbal is fine.
c. Employer must be aware. Is constructive notice acceptable? If one person at company
knew, you can assume that employer knew. Argument may or may not be successful
(2) an adverse action (after 2006, employee need only suffer an adverse action, not an adverse
employment action) disadvantaging the plaintiff, and
a. Post 2006- Adverse action means that the employer’s actions must be harmful to the
point that they could well dissuade reporting fraud is not an protected activity under title
vii
(3) a causal connection (but for) between the protected activity and the adverse employment
action.
- Causation: Easiest way to prove this is temporal proximity. The closer in time the two
events, the easier it is to prove causal connection.
** plaintiff need not prove that the conditions against which he protested actually amounted to a
violation of discrimination (don’t need to prove underlying discrimination claim)
2. Burden shifts to d to articulate legitimate non retaliatory reason for adverse action
3. P proves pretext
**Anti retaliation applies to third parties…third party can bring the claim
** NO MIXED MOTIVE
- Person’s job may be a factor in determining if there was a reasonable belief.
Defenses: title vii defenses, , failed to establish claim, co-worker retaliation—no way they did or could
have known
-could be held liable under cats paw, always liable for supervisor
ADA
-Must exhaust title vii admin. duties and sol
1. Prima Facie Disparate Treatment Case
1) Plaintiff has a disability as defined by the ADA
a. 1) physical or mental impairment that 2) substantially limits a major life activity
i. Pre 2008- impairment had to be highly restrictive of an activity of central
importance to daily live
ii. Post 2008- An impairment substantially limits a major activity if it makes an
individual completely unable to perform the activity or if it “significantly
restricts the duration, manner or condition under which an individual can
perform a particular major life activity as compared to the average person in
the general population's ability to perform that same major life activity.”
iii. Mitigating measures with positive effects should be ignored, but those with
negatives effects must be considered
b. or has a record of such impairment or
c. regarded as having such an impairment
2) Qualified: to perform the essential functions of her job (look to skill, education, experience) ,
with or without a reasonable accommodation
a. Whether a job function is essential is a Case by case decision
b. Duty to take disability into account
c. Not blindness toward disabilities
d. No need for fundamental alteration in nature of program
e. No need for undue financial and administrative burdens
3) Adverse employment action
4) Causation
Accommodation
-any change in the work environment to help a person with a disability apply for a job, perform
the duties of a job, or enjoy the benefits and privileges of employment.
a. Employer has duty to accommodate, but need not if it will cause an undue hardship
-undue hardship: the accommodation would be too difficult or too expensive to provide
in light of the employer's size, financial resources, and the needs of the business.
- Case by case determination. Factors: nature and cost, employers financial
resources, accommodation effect on their employees and operation
b. employer and employee msut engage in interactive process
a. Employer has obligation to participate in the interactive process, but refusal
does not mean plaintiff has another cause of action. Can allege that they failed
to provide reasonable accommodation, but failing to engage in process is not in
itself a separate cause of action (maybe under certain state laws).
b. P is not entitled to accommodation of their choice
c. An employer should initiate the reasonable accommodation interactive process without being
asked if the employer either:

Knows that the employee has a disability.

Knows, or has reason to know, that the employee is experiencing workplace
problems because of the disability.

Knows, or has reason to know, that the disability prevents the employee from
requesting a reasonable accommodation.
Failure to Accommodate Claim:
(1) he was disabled, (2) he was otherwise qualified, and (3) a reasonable accommodation was
not provided
Defenses:
1) Business necessity: job related and consistent with business necessity
a. job related
i. the standard accurately measures someone’s ability to perform the essential
functions of the job.
b. business necessity and
i. the employer must show that the standard substantially promotes the
business’s needs, beyond merely being convenient or expedient.
c. Cant be satisfied by someone with p’s ability even if they have an accommodation
2) Direct threat: Employer proves P is unqualified for the job because she would pose a direct
threat to the safety of themselves or to hers in the workplace that cant be eliminated by
reasonable accommodation.
a. Must be reasonable and based on current medical knowledge
b. Must make determination on individual basis
c. Must consider the imminence of the alleged risk and the degree of harm that might
result
3) Undue hardship
**Retaliation applies, harassment, disparate impact- same as Title VII
** Rehab Act Applies to:
1.
Federal government
2.
Federally funded programs
3.
Federal contractors ($10,000 plus)
4.
No exhaustion of administrative remedies required
5.
Adopts SOL of analogous state statute
EQUAL PAY AND TITLE VII
Equal Pay Act (Designed to make sure women were paid the same as men for the same work or
substantially similar work)
BASICS OF EPA: Only deals with difference in pay based on sex. (Separate from Title VII)
1. No minimum number of employees
2. No administrative remedies to exhaust
3. No proof of intent is needed
4. SOL: Have 3 years to file a claim of a willful violation (rather than 2)
5. Remedies: Back pay, liquidated damages (double) (discretion of district court), attorney’s fees.
6. After County of Washington v. Gunther, the four defenses for the Equal Pay Act (seen below) are also
applicable to claims for disparate treatment in pay under Title VII.
7. Title VII prohibits discrimination in compensation or other aspects of employment based on
protected category.
Prima Facie:
1) P was paid less than at least one employee of the opposite sex,
2) the jobs plaintiff and comparator employee performed required equal, skill, effort and
responsibility,
3) P and comparator employee performed the jobs under similar working conditions in the same
establishment
a. (performed similar work, doesn’t have to be exactly the same)
b. Time of work is not a matter of working conditions. Congress intended to define similar
working conditions according to technical standards that include only the surrounding
hazards of employment.
If P makes showing, burden shifts to D, who must use one of the four affirmative statutory defenses to
justify the difference in pay beyond a preponderance of the evidence:
1. (i) A Seniority System - Defendant must prove it relied upon seniority system, a facially neutral
policy. P must prove that the system is not bonafide by showing (1) the plan discourages some
inter-unit transfers; or (2) the structure of the system is not rational; or (3) the plan was created
or maintained for a discriminatory purpose (could be applied to other systems too)
2. A merit system
3. A system which measures earnings by quantity or quality of production; or
4. A differential based on any other factor other than sex [CATCHALL].( an employer must prove
that the factor is job-related and adopted for a legitimate business reason)
Plaintiffs offer proof that the defendant’s reasons are a pretext for pay differences based on sex (look
above in seniority system).
**Can bring retaliation claim under EPA