Employment Discrimination In Law

Employment Discrimination

Question	Answer	Column 3
Protected Classes	Race, Color, Religion, National Origin, Gender, Pregnancy, Handicap, Age (40 and over), Sexual Orientation (not in all states)
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Disparate Treatment

Elements	Definitions
Member of Protected Class
Applied/Qualified for Jobs/Raises/Etc.
Rejected	You must show you didn't get what you applied or were qualified for
Job Still Open, Etc.	Must Show they gave it to someone not in your protected class.
Damages	Both financial and emotional, must have mitigation of damages
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Attorney's fees are covered under discrimination statutes if you win

Burden of Proof for Disparate Treatment

Rarely have a direct evidence a.k.a. "smoking gun" in these cases

Who	Burden
Plaintiff must show the elements (Prima Facie case)	Must show all 5 Elements
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if the plaintiff shows the Prima Facie case, then the burdent shifts to:

Who	Burden
Defendant	Must show legitimate business reason for action
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if the defendant shows the legitimate business reason the burdent shifts to:

Who	Burden
Palintiff	Must show that reason is only pretext for discrimination
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Disparate Impact

Question	Answer
Facially Neutral Rule	on it's face is not discriminatory, but has the affect of discriminating against a protected group.
Has Discriminatory Effect
Prove by Statistics
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example: Dothard v. Rawlinson

Sexual Harassment

it would be no defense to say it's just a manager; the manager represents the whole company.

 

Part of Gender Discrimination
Quid Pro Quo	a.k.a. "This for that", when a superior tells a subordinat they need to trade sex for job help, a.k.a. promotion, raise, better hours, etc.
Sexually Hostile Environment	something of a sexual nature at work that substantially affects ones ability to do their job.
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Both of these create liability for employer for acts of emplyees

Damages

Question	Answer
Legal Remedies	Money
Equitable Remedies	Things (example: having an inappropriate picture taken down)
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Procedural Issues

Question	Answer
First file complaint w/ appropriate agency	before you can sue, you must first file a complaint
Exhaust administrative agency remedies	if you don't, they send you home saying you "failed to exhaust..."
300 day statute of limitations	clock starts when you know or should have known that you have been discriminated against
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You need to go to court 3 years from the first day.

Appropriate Agency

both agencies have reciprocity-if you file with one, they will notify the other.

Question	Answer
MCAD	Massachusetts Commission Against Discrimination
EEOC	Equal Employment Opportunity Commission
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Pregnancy

Question	Answer
Pregnancy: Employers Cannot...	Fire, Demote, Change Job, Give Different Health Insurance
Pregnancy: Employers Must...	Keep Job Open, Allow Return to Same Job
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Religious Discrimination

Question	Answer
Religious Discrimination: Requirement to Accommodate	Holidays, Practices, Observances
Religious Discrimination: Do Not Have to Accommodate if	it creates an "Undue Hardship" on conduct of business (example: all employees are catholic, and work is open on Christmas. Someone has to work)
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Disability Discrimination

Question	Answer
Disabled Person/"Qualified Disabled Person"	Disability that substantially affects major life activity. Also, being treated as disabled even if not
Must be able to Perform Essential Functions of Job	Start with employer description, but then must prove essential
With or without accommodations	accomodations can be wide ranging
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Disability Discrimination

Question	Answer
Employer Required to Accommodate Disability	Employer pays for accomodatioons, because they are the entity who can best afford to pay.
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Unless:

Question	Answer
It creates an Undue Hardship for the Employer
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Defenses

Question	Answer
Bona Fide Occupational Qualification (BFOQ)	a defense for disparate treatment, discriminatory on it's face, carefully formulated to meet public safety, privacy or other need, narrow as possible
Business Necessity	a defense for disparate impact, business must prove necessary for business
Merit/Seniority System	must apply to all employees, divisions used by system must be industry standard, origins can not be racial discrimination, maintained for merit/seniority only
Aptitude	must prove that test is valid, test related to successful job performance, must prove success on test = success on job.
Faragher	Federal Defense only, employer must show: had a discrimination policy, a compliant procedure and the employee failed to use the complaint procedure.
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Exception to Faragher:

Question	Answer
If employee can show that the complaint would be futile, then they don't have to complain	Complaint procedure doesn't allow for multiple outlets for complaint, if the employee has to bring the complaint to the person that is doing the discriminating
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