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Employment Discrimination In Law

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Updated 2008-04-24 19:09

Employment Discrimination

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

ElementsDefinitions
Member of Protected Class
Applied/Qualified for Jobs/Raises/Etc.
RejectedYou 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.
DamagesBoth 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
WhoBurden
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:
WhoBurden
DefendantMust show legitimate business reason for action
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if the defendant shows the legitimate business reason the burdent shifts to:
WhoBurden
PalintiffMust show that reason is only pretext for discrimination
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Disparate Impact

Question Answer
Facially Neutral Ruleon 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 Quoa.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 Environmentsomething 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 RemediesMoney
Equitable RemediesThings (example: having an inappropriate picture taken down)
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Procedural Issues

Question Answer
First file complaint w/ appropriate agencybefore you can sue, you must first file a complaint
Exhaust administrative agency remediesif you don't, they send you home saying you "failed to exhaust..."
300 day statute of limitationsclock 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
MCADMassachusetts Commission Against Discrimination
EEOCEqual 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 AccommodateHolidays, Practices, Observances
Religious Discrimination: Do Not Have to Accommodate ifit 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 JobStart with employer description, but then must prove essential
With or without accommodationsaccomodations can be wide ranging
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Disability Discrimination

Question Answer
Employer Required to Accommodate DisabilityEmployer 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 Necessitya defense for disparate impact, business must prove necessary for business
Merit/Seniority Systemmust apply to all employees, divisions used by system must be industry standard, origins can not be racial discrimination, maintained for merit/seniority only
Aptitudemust prove that test is valid, test related to successful job performance, must prove success on test = success on job.
FaragherFederal 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 complainComplaint 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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