Basics of Employment Discrimination Law for Law Clerks

270 Pages·2005·2.83 MB·English

Basics of Employment
Discrimination Law
for Law Clerks
a broadcast from the federal judicial center and
the aba’s labor & employment law section
Faculty
Jana Howard Carey
Venable, Baetjer & Howard, LLP
Mark Dichter
Morgan, Lewis & Bockius, LLP
Wendy L. Kahn
Zwerdling, Paul, Kahn & Wolly, PC
Richard T. Seymour
Lieff, Cabraser, Heimann & Bernstein, LLP
Peter Zinober
Zinober & McCrea
moderator
first broadcast August 27, 2003, updated August 2005
These materials were prepared in furtherance of the Federal Judicial Center’s statutory mission
to develop and conduct education programs for judicial branch employees. The views
expressed are those of the authors and not necessarily those of the Federal Judicial Center.
The Federal Judicial Television Network
bringing you educational telecasts and information from the Administrative Office of the
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Basics of Employment Discrimination Law for Law Clerks
Program Outline
Importance of Employment Law in Federal Court
Equal Employment Opportunity cases accounted for about 8 percent of all civil
filings in the year 2001.
Federal-question EEO cases made up more than 12 percent of all federal ques-
tion civil cases.
In courts of appeals, EEO cases made up more than 21 percent of all civil fed-
eral question cases decided after oral argument in 2001.
Between 1990 and 2000 the number of employment discrimination cases filed
in federal court increased by almost 250 percent.
Overview
Title VII of the Civil Rights Act of 1964 is one of the first and most important
laws in this area.
• Amended in 1972, 1978 and 1991.
• When doing research remember to look at 1991 amendments.
Title VII covers
• private and public employers
• federal, state and local governments
• labor unions, employment agencies, and hiring halls.
Title VII forbids discrimination based on
• race
• color
• national origin
• gender
• religion.
Prohibitions Under Title VII
National origin discrimination
National origin discrimination is discriminating against someone because of their
country of origin or their ancestors’ country of origin. Under EEOC guidelines,
protection extends to people discriminated against because of:
• marriage to or association with people of a certain national origin
• membership in or association with an organization that is identified with or
promotes the interests of a national origin group
• attendance at or participation in schools or churches generally used by per-
sons of a particular national origin group
• persons whose names or spouses names are associated with a national ori-
gin group, even if they don’t belong to that group.
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Basics of Employment Discrimination Law for Law Clerks: Program Outline
Prohibition against national origin discrimination affects:
• natives of a recognized nation
• persons with distinct cultural or ethnic identity
• discrimination between people of different national origins.
Leading case: Espinoza v. Farrah Manufacturing, where the Su-
preme Court concluded that Title VII does not prohibit discrimina-
tion on the basis of citizenship unless the citizenship discrimina-
tion has the purpose or effect of national origin discrimination.
Promulgation of English Only rules has been one ongoing source of litigation un-
der this part of Title VII.
Employers who are charged with national origin discrimination because of an
English Only rule have a Bona Fide Occupational Qualification (BFOQ) defense
if English is required for a legitimate business purpose.
The EEOC has taken the position that if the English Only rule applies at all
times rather than just at certain times when legitimate business needs require it, it
may constitute national origin discrimination.
Employees have to be on notice of such a rule and the consequences of violat-
ing it.
Sex discrimination
Failure to promote someone because she is a woman is a clear violation of Title
VII. Title VII does not prohibit discrimination based on:
• sexual activity
• sexual orientation
• marital status.
Cannot discriminate based on:
• pregnancy
• childbirth or related medical conditions.
This was not always the case, so Congress enacted the Pregnancy Discrimination
Act (PDA).
Leading case: California Federal Savings and Loan v. Guerra:
Supreme Court held that the PDA did not preempt a state statute
that required employers to provide paid leave to employees who
were disabled by pregnancy, childbirth, or related conditions.
Issues under the PDA:
• Was a particular condition related to pregnancy or childbirth?
• Was an action by the employer related to pregnancy or childbirth?
• Was alleged employee misconduct related to pregnancy?
Religious discrimination
Religious discrimination is discriminating against somebody because they
engage in religious observances. Religions that are covered:
• agnostics
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Basics of Employment Discrimination Law for Law Clerks: Program Outline
• atheists
• people who have a belief that is not even adopted by the religion that they
are in name a part of.
Basic rule is it has to be a religious type of belief and has to be held with the
strength and conviction with which religious beliefs are normally held. It covers
discriminating against someone;
• because they engage in religious observances, e.g., clothing
• who refuses to allow any invasion of their body because they consider that
to be contrary to their religious beliefs, e.g., TB test
• who wants to observe their Sabbath whenever it may be
• Interesting point: Prohibition against discrimination based on religion is the
only basis for discrimination in Title VII where employers not only have to
refrain from discriminating, but are also required to accommodate their em-
ployees.
Leading case: Trans World Airlines v. Hardison: The Supreme
Court held that employers are not required to bear more than a de
minimis cost to accommodate an employee’s religious beliefs. The
Court also held that employers are not required to make exceptions
to their seniority systems, if doing so would violate a collectively
bargained system.
Title VII recognizes that employers which qualify as “religious organizations”
may engage in certain otherwise prohibited discrimination practices
• which favor members of their own religion
• which discriminate against persons not holding such membership or views
• or which discriminate against persons not following the religious teachings
of the employer.
only when the employee’s conduct is inconsistent with employer’s religious pre-
cepts
BFOQ defense is allowed in religious discrimination cases where belonging to
a specific religion or religious institution is considered a necessary qualification
of working there.
Regulated Behaviors
Employers are prohibited from discriminating in
• hiring
• discharge
• compensation
• terms, conditions, privileges of employment
• promotions
• tests and other selection criteria
• employee benefits
• training
• work assignments.
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Basics of Employment Discrimination Law for Law Clerks: Program Outline
Employment agencies are prohibited from
• failing or refusing to refer someone for employment based on a protected
characteristic
• referring someone solely on the basis of those protected characteristics.
Labor organizations are covered both as representatives of employees and, if they
are large enough, as employers. As a labor organization, they are prohibited from
• excluding or expelling members
• discriminating against members or applicants
• failing or refusing to refer
• causing or attempting to cause an employer to discriminate
• failing to fairly represent bargaining unit employees.
Regulated Actors
People running job skills training programs, apprenticeship programs, and retrain-
ing and on the job training are prohibited from discriminating in admission to or
participation in such training programs.
All persons and entities covered by the statute are prohibited from
• limiting,
• segregating, or
• classifying employees or applicants in any way that would deprive them or
tend to deprive them of employment opportunities or adversely affect their
status as an employee.
They are also prohibited from retaliating against employees who exercise their
rights.
There are two types of retaliation:
• Opposition clause: Prohibits employers from retaliating against someone
who opposed a practice that a person believes is discriminatory
• Participation clause: Prohibits an employer from retaliating against some-
one
a. who has filed an EEO charge;
b. who has participated in an investigation;
c. who has participated as a witness for someone else in a Title VII or an
EEO investigation;
d. who participated in a hearing;
e. who participated in discovery.
Areas of Focus
Sexual harassment
There are two types of sexual harassment.
• Quid pro quo: when a job action is dependant on the provision of sexual fa-
vors
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Basics of Employment Discrimination Law for Law Clerks: Program Outline
• Hostile environment sexual harassment: does not involve a tangible job det-
riment but instead creates an environment that is unpleasant and unaccept-
able based upon the considerations of sex (e.g., jokes, language, unwanted
touching)
Leading cases: Faragher v. City of Boca Raton and Ellerth v. Bur-
lington Industries: The Supreme Court ruled that in any situation
where sexual harassment by a supervisor with immediate or suc-
cessively higher authority results in a tangible detrimental em-
ployment action (such as discharge or demotion or an undesirable
assignment), the employer is strictly liable for that action, even if
the employer and its management had no knowledge the harass-
ment was taking place.
If, however, no tangible detrimental employment action results from the sexual
harassment Faragher and Ellerth provide employers with a two-prong affirmative
defense;
• has to show reasonable care to prevent and/or correct harassing behavior
• complaining employee unreasonably failed to use existing policy.
Tangible job detriment
• could affect pay
• demotion
• discharge
• failure to promote.
Supervisor is generally one who has the authority to
• hire
• fire
• discipline
• promote
• change terms and conditions of employment
• effectively recommend these be done.
In its 2004 opinion in Pennsylvania State Police v. Suders the Supreme Court
considered whether the Faragher/Ellerth affirmative defense is available to the
defendant in a “constructive discharge” case. The Court held that the ordinary
harassment rules apply to cases in which the plaintiff alleges a compelled resigna-
tion: the defense is not available if a tangible employment action caused such a
resignation, but is available if the resignation occurred without a tangible em-
ployment action.
Other elements to claim of sexual harassment:
• Does Title VII prohibit sexual harassment where the harasser and the victim
are the same sex?
Leading case: Oncale v. Sundowner Offshore Services, Inc: The
Court answers yes, the purpose of Title VII was to protect both
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Basics of Employment Discrimination Law for Law Clerks: Program Outline
men and women from discrimination and harassment in the work-
place and the sex of the harasser should not be a determining fac-
tor.
Equal opportunity harasser
• If defendant can successfully argue the harassment was not because of the
sex of the target this type of harassment is not covered by Title VII.
Hostile work environment
The basic question is whether the harassment was sufficiently severe and perva-
sive to create an environment that a reasonable person would find hostile and abu-
sive.
Leading case: Harris v. Forklift Systems, Inc.: Supreme Court de-
tailed factors;
• frequency and severity of the conduct
• whether it was physically threatening or humiliating as op-
posed to a mere offensive utterance
• whether it unreasonably interfered with an employee’s
work performance.
Harassment also prohibited by;
• co-workers
• supervisors
• customers
• patients.
Discrimination against the disabled
Definition in the 1990 Americans with Disabilities Act.
If the person
• has a disability that significantly affects a major life activity
• has a record of such a disability
• is regarded as having such a disability
then it qualifies under the statute.
Not considered disabilities:
• illegal drug use
• bisexuality
• transvestism, etc.
• physical characteristics
• personality traits
• pregnancy
• predisposition to illness.
Leading case: Toyota Motor Manufacturing, Kentucky, Inc. v.
Williams: The Supreme Court held that “to be substantially limited
in performing manual tasks an individual must have an impairment
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Basics of Employment Discrimination Law for Law Clerks: Program Outline
that prevents or severely restricts the individual from doing activi-
ties that are of central importance to most people’s daily lives and
the impact of the impairment is required to be permanent or long
term.”
Leading case: Sutton v. United Air Lines Inc.: The Court ruled
that judging whether a person is disabled within the meaning of the
ADA also requires taking into account available effective mitigat-
ing measures.
Employers must make a reasonable accommodation for the disability that does
not cause an undue burden on the employer. Reasonable accommodations:
• making existing facilities readily accessible and usable
• job restructuring
• part time or modified work schedules
• reassignment to vacant positions
• provision of qualified readers or interpreters.

Theories of Discrimination
Disparate treatment
Intentional discrimination
• Can be proved by direct or circumstantial evidence.
• Burden of proof is on the plaintiff.
Mixed motive
Discrimination was one factor in the discrimination but not the only factor
• Plaintiff need only demonstrate that race, color, religion, sex, national ori-
gin, age, or disability was a motivating factor in the decision made by the
employer.
• Employer bears the burden of persuasion.
Pattern and practice
Plaintiff alleges ongoing disparate treatment with all members of protected class.
Adverse impact
Plaintiff alleges facially neutral practice falls more harshly on one group than an-
other and is not justified by business necessity.
Adverse impact is also sometimes called disparate impact. The Supreme Court
in its March 2005 opinion in Smith v. City of Jackson authorized recovery for
complaints of disparate impact under the Age Discrimination in Employment Act,
or ADEA. However, the Supreme Court held that an employer can more readily
defend a practice that has a disparate impact under the ADEA than under Title
VII.
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Basics of Employment Discrimination Law for Law Clerks: Program Outline
Procedural Issues
Role of the EEOC
Plaintiff cannot be in court unless the plaintiff has exhausted before the EEOC
with respect to claims that are Title VII, ADEA, ADA, etc. Plaintiff must put
down in charge before EEOC what is the practice that is alleged to be unlawful
and what is the basis of discrimination being claimed. Is it age, race, gender, etc.?
Filing deadlines
• 180 or 300 days of the alleged discrimination occurring
• depends on whether the plaintiff has also filed the charge in a deferral juris-
diction.
Deferral jurisdictions
Where there is a fair employment practices agency and a fair employment prac-
tices statute. Where those kinds of statutes or ordinances exist, the limitations pe-
riod is extended from 180 days to 300 days.
Leading case: Edelman v. Lynchburg College: The Supreme Court
decided that the filing of a verified or sworn charge after the limi-
tations period relates back to a timely filed unverified charge mak-
ing the earlier charge timely.
Mediation
Even before the EEOC investigation is complete, the agency offers the parties as-
sistance in mediating the dispute in most cases only if both parties agree.
The EEOC administrative process ends if the agency decides against a “rea-
sonable cause.” If it does reach a reasonable cause determination, it then asks the
parties to conciliate. If the parties do not, EEOC can bring suit or issue a “notice
of right to sue.” Parties now have 90 days to file a Title VII, ADEA, or ADA law-
suit after they receive the notice.
Leading case: EEOC v. Waffle House: Court decided that where
an employee cannot sue his employer claiming discrimination be-
cause he signed an agreement to arbitrate such disputes, the EEOC
can still sue the employer on its own authority.
Doctrine of exhaustion
Requires that the basis for the discrimination claim has to be stated completely
in the charge.
• Applies in Title VII, ADA and ADEA cases.
• Doesn’t apply under Sections 1981 and 1983.
• Exceptions if party could not have known the basis for discrimination or if
there is post-charge retaliation.
• List of defendants does not have to be exhausted in the charge. They can be
added if they had notice, they could have reasonably understood charges
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Basics of Employment Discrimination Law for Law Clerks: Program Outline
could have brought against them or acted in ways that led to confusion
about who was liable.
Single-filing doctrine
In cases in which class actions are sought and the representative plaintiff is
seeking to add individuals into the case whose claims are timed barred, the
single-filing rule says that if the individual
• who never filed a charge
• who never exhausted administrative remedies
• if that individual suffered the same kind of discrimination as the named
plaintiff within the statute of limitations so that they could have filed a
charge at the same time the charging party did
• then the individual can be brought into the lawsuit on a piggyback or sin-
gle-filing basis
Continuing violations doctrine
Reaches back beyond the 180-day or 300-day limitation.
Leading case: National Railroad Passenger Corp v. Morgan:
Court held that a Title VII plaintiff raising claims of discrete dis-
crimination or retaliatory acts must file his charge within the 180-
300-day period but that a charge alleging 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 fil-
ing period.
Time periods for exhaustion:
1. 180 days of filing under Title VII, ADEA, or ADA.
2. 300 days if there is a deferral agency.
3. Time starts to run when person is told of adverse action.
4. Grieving the action in collective bargaining situation does not toll the time
period.
5. If action is not final, time does not necessarily start to run.

If asked to research the single-filing doctrine or piggyback doctrine you may want
to look at an Eleventh Circuit case from 2001, Hipp v. Liberty National Insurance
Co., 252 F.3d 1208 (2001).
Public and Private Sector Differences
• No punitive damages available under federal law against any government
agency.
• If you are dealing with the state or local government agency and the case is
brought under Title VII, the Supreme Court has held that the Eleventh
Amendment does not bar the case, and the courts of appeals have held that
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