DETAILED TABLE OF CONTENTS

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1 DETAILED TABLE OF CONTENTS Dedications...v Board of Editors... vii v Foreword...xxxv xxix Preface... xxxvii xxxi Summary Table of Contents... xli xxxiii Chapter 1. An Overview Part I: Theories of Discrimination Chapter 2. Disparate Treatment I. The Theory II. Proof of Disparate Treatment in the Individual Case A. The McDonnell Douglas-Burdine-Hicks- Reeves Analysis: Proof of Disparate Treatment Through Circumstantial Evidence Evolution of the Allocation and Order of Proof Elements of the Prima Facie Case Pleading Requirements Special Formulations a. Reverse Discrimination b. Reductions in Force c. Color Discrimination d. Gender Stereotyping xxxvii

2 xxxviii EDL B. The Employer s Burden of Producing Evidence of a Legitimate, Nondiscriminatory Reason C. Evidence Concerning Pretext Pretext in General Biased Comments Evidence of Pretext or Stray Remarks Evidence Regarding Other Alleged Victims Comparative Evidence Statistics Strength of the Employer s Explanation a. Probativeness of Prior Performance History b. Multiple Explanations by the Employer c. Role of Employer s Honest Belief d. Same Actor Inference Other Evidence D. The Order of Proof E. Instructing the Jury F. Proof of Disparate Treatment Through Direct Evidence G. Proof of Disparate Treatment in Mixed- Motive Cases III. Disparate Treatment Class Actions and Pattern-or-Practice Cases Chapter 3. Disparate Impact I. The Theory II. Historical Development and Statutory Authority A. Title VII B. The Age Discrimination in Employment Act

3 Detailed Table of Contents xxxix III. Order and Burdens of Proof in Title VII Disparate Impact Cases A. The Plaintiff s Prima Facie Case The Threshold Showing of Disparate Impact Required The Appropriate Method of Comparison a. The Relevant Labor Market b. Selection Rates or Rejection Rates? c. Bottom-Line Statistics (i.) The bottom-line defense (ii.) The bottom-line offense Defendant s Response to the Plaintiff s Statistical Evidence B. Business Necessity and Job- Relatedness C. Demonstration of Alternative Selection Devices Having Less Disparate Impact IV. Remedies Chapter 4. Application of Disparate Impact to Employment Decisions I. Scored Tests A. Overview B. Title VII Coverage Section 703(h) Demographic Norming Licensing Examinations C. ADA Coverage D. The Uniform Guidelines on Employee Selection Procedures History of the Uniform Guidelines Basic Provisions of the Uniform Guidelines The Weight to Be Accorded the Uniform Guidelines

4 xl EDL E. Allocation of Proof in Scored Test Cases Standards of Proof Proof of Job-Relatedness Validation Methodologies a. Overview b. Criterion-Related Validation (i.) The appropriate criteria (ii.) Selection of the criterion measure (iii.) The necessary correlation c. Content Validation d. Construct Validation Differential, Single-Group, and Situational Validity Validity Problems in the Application of Scored Tests a. Rank-Ordering b. Cutoff Scores F. Remedies G. Litigation Issues and Considerations The Industrial Psychologist as a Consulting Trial Preparation Expert The Industrial Psychologist as an Expert Witness a. Pretrial Use of the Expert b. Admissibility of Expert Testimony Use of Test Questions The Job Analysis II. Non-Scored Objective Criteria A. The Theory B. Professional and Licensing Requirements Education Requirements Experience Prerequisites

5 Detailed Table of Contents xli 3. Performance Requirements C. Official Records Arrest Records Convictions Less-Than-Honorable Discharges D. Garnishments and Other Financial Criteria E. Other Objective Criteria Overview Drug Use and Drug Testing Residency Requirements III. Subjective Criteria A. The Theory B. The Job for Which Selection Is Being Considered Nature of the Job Blue-Collar Jobs White-Collar Jobs C. Factors Considered in Structuring, Attacking, or Defending Subjective Criteria Overview Factors Considered by Courts in Evaluating the Legality of Subjective Evaluation/Selection Systems a. Whether the Decision Is Pursuant to a Professional Job Analysis b. Whether Raters Operate Under Specific Safeguards and Guidelines c. Whether Selection Criteria Are Based on Observable Behaviors or Performances d. Whether the Evaluator Is a Member of the Plaintiff s Protected Group e. Whether Viable Objective Criteria Are Available

6 xlii EDL Chapter 5. Failure to Provide a Reasonable Accommodation I. Introduction II. Accommodating Religion III. Accommodating Disability Part II: Prohibited Bases of Discrimination Chapter 6. Race and Color I. Discrimination Based on Color II. Discrimination Based on Race III. Discrimination Based on Race-Linked Characteristics IV. Discrimination Based on Grooming and Cultural Identification V. Association Discrimination VI. Segregated Employment and Employment Facilities VII. Racial Harassment VIII. Race Plus IX. Defenses to Race and Color Discrimination Chapter 7. National Origin and Citizenship 7-1 I. Introduction II. Sources of Protection A. Title VII Defining National Origin National Origin Versus Citizenship a. Title VII s Coverage of Noncitizens b. Title VII s Lack of Protection Against Citizenship Discrimination

7 Detailed Table of Contents xliii 3. Extraterritorial Application of Title VII to U.S. Employers and Employees B. The Fourteenth Amendment and the 1871 Civil Rights Act C. Section 1981 of the 1866 Civil Rights Act D. The Immigration Reform and Control Act of The IRCA s Antidiscrimination Provisions Administrative Enforcement of IRCA Charges of Discrimination III. Language and Accent A. Fluency Requirements B. English-Only Rules C. Accents IV. Height and Weight Standards V. Foreign Education and Training VI. Exceptions A. Security Clearance B. Bona Fide Occupational Qualification C. Treaty Obligations Chapter 8. Native Americans I. Antidiscrimination Protection of Native Americans II. Preferential Treatment of Native Americans A. Section 703(i) Exemption Under Title VII B. Other Statutory Preferences III. Liability of Indian Tribes A. Section 701(b) Exemption Under Title VII B. Exemption From Other Antidiscrimination Statutes C. Exhaustion of Tribal Remedies

8 xliv EDL Chapter 9. Religion I. Introduction II. What Is Protected as Religion? A. Sincerely Held Religious Beliefs B. The Religious Freedom Restoration Act III. The Employer s Duty to Accommodate A. The Source of the Duty to Accommodate B. The Constitutionality of the Duty to Accommodate C. The Extent of the Duty to Accommodate The Elements of Proof The Scope of the Duty to Accommodate a. A Framework of Analysis b. The Extent of Accommodation Required Specific Accommodations a. Work Scheduling b. Employment Testing and Preemployment Inquiries c. Union Membership d. Personal Appearance e. Other Accommodation Issues IV. Disparate Treatment V. Constitutional Claims VI. Harassment VII. Permissible Religious Discrimination Special Exemptions A. Introduction B. Religious Corporations C. Educational Institutions D. Ministerial Exception E. Aliens and Foreign Corporations F. Religion as a Bona Fide Occupational Qualification (BFOQ)

9 Detailed Table of Contents xlv Chapter 10. Sex I. Overview II. Bona Fide Occupational Qualification (BFOQ) A. Statutory Authority and EEOC Guidelines B. Elements of the BFOQ Defense Direct Relationship Between Sex and the Ability to Perform the Job Essence of the Business No Reasonable Alternative C. The Theories of BFOQ Safety Privacy Customer Preference Role Models D. State Protective Laws The History of State Protective Laws Constitutional and Statutory Authority and EEOC Guidelines Beneficial State Protective Legislation III. Seniority Systems and Lines of Progression A. The Intentional Discrimination Requirement B. What Constitutes a Seniority System? C. When Did the Alleged Discrimination Occur? IV. Sex Discrimination in Executive and Professional Employment A. The Glass Ceiling Initiative B. Sex Stereotyping C. Second-Guessing the Employer V. Pay Discrimination

10 xlvi EDL VI. Fringe Benefits A. Statutory Authority and EEOC Guidelines B. Retirement Plans Contributions and Benefits Retirement Eligibility Age C. Insurance, Medical, and Disability Plans VII. Pregnancy, Childbirth, and Parenting A. Discrimination on the Basis of Pregnancy General Theory The Gilbert and Satty Decisions The Pregnancy Discrimination Act (PDA) a. Passage of the PDA b. Abortion c. Infertility d. Employment Decisions Based on Employee Conduct Permissible Even if Related to Pregnancy e. Failure to Provide Light Duty f. Elimination of Position or Demotion During Pregnancy or Maternity Leave g. Genetic Information Gained From Pregnancy Testing h. Returning to Work From Pregnancy-Related Medical Maternity Leave i. Breast-Feeding j. Part-Time Work k. Actual Knowledge of Pregnancy or Attempted Pregnancy l. Contraception B. Mandatory Maternity Leaves C. Right to Voluntary Leave Title VII

11 Detailed Table of Contents xlvii a. Pregnancy- and Childbirth- Related Disability Leave b. Parenting Leave c. Reinstatement After Leave The Family and Medical Leave Act a. Family and Medical Leave Act Basics b. Cases Involving the Family and Medical Leave Act and Pregnancy D. Benefits State Disability Insurance State Unemployment Compensation Employer Health, Disability, and Retirement Benefits E. The Fertile or Pregnant Employee in a Hazardous Work Area VIII. Sex Plus A. Overview B. Sex Plus Marriage and Family C. Sex Plus Race D. Sex Plus Appearance and Grooming Standards E. Sex Plus Age IX. Transsexuality X. Height, Weight, and Physical Agility Requirements XI. Title IX of the Education Amendments Act of A. Enforcement Statutory Authority Administrative Enforcement Private Right of Action B. Title IX s Coverage C. Application of Title IX to Employers

12 xlviii EDL Chapter 11. Sexual Orientation and Gender Identity I. Title VII A. Sexual Orientation B. Same-Sex Sexual Harassment C. Gender Stereotyping D. Transgender Discrimination II. State Statutes and Initiatives A. State Statutes, Executive Orders, and Local Ordinances Sexual Orientation Gender Identity B. Popular Initiatives C. State Common Law and Other Statutory Claims D. Different Treatment in Benefits III. Constitutional Issues and Federal Statutes Applicable to Public Employment A. Civil Service Reform Act of 1978 and Federal Executive Orders B. Due Process and Equal Protection C. The First Amendment IV. Special Issues Regarding Service in the Armed Forces Appendix 1. Terminology in Cases Concerning Gender Identity and Sexual Orientation Appendix 2. State Fair Employment Practices Statutes Relating to Discrimination Based on Gender Identity or Expression, Gender Dysphoria, and/or Sexual Orientation Chapter 12. Age I. Sources of Protection A. The Age Discrimination in Employment Act (ADEA)

13 Detailed Table of Contents xlix B. The Older Workers Benefit Protection Act (OWBPA) II. The Theory III. Who Is Protected A. Individuals Age 40 and Above B. Exemptions for Certain Military Personnel and Executives C. Exclusion of Independent Contractors and Partners in a Bona Fide Partnership IV. Who Are Covered Entities A. Private Employers B. The Federal Government C. State and Local Governments D. Labor Organizations E. Apprenticeship Programs F. Employment Agencies V. Prohibited Practices VI. Procedural Issues Unique to Age A. Overview B. Filing With the EEOC The Charge /300-Day Time Limit Determining When Discrimination Has Occurred Tolling of the Limitations Period EEOC Conciliation C. Filing a Charge With the State Fair Employment Practices (FEP) Agency VII. Individual Actions Under the ADEA A. Private Right of Action B. Time for Filing Suit C. Scope of Suit VIII. Representative Actions Under the ADEA A. Introduction B. Standards for Determining Representativeness

14 l EDL C. Adequacy of the Original EEOC Charge as a Jurisdictional Basis for Opt-Ins D. ADEA Trial Structure for Representative Actions E. Applicability of Rule 23 Procedures to Federal Employees IX. Jury Trial X. Proof Issues Unique to Age Cases A. Introduction B. Disparate Treatment The Plaintiff s Prima Facie Case a. Plaintiff s Qualifications b. Selection or Retention of Someone Younger Defendant s Articulation of a Legitimate, Nondiscriminatory Reason Plaintiff s Proof of Pretext Mixed-Motive Cases C. Disparate Impact The Plaintiff s Prima Facie Case a. Identification of Specific Employment Practice b. Threshold Showing of Disparate Impact The Employer s Defense a. Reasonable Factor Other Than Age b. Burden of Proof XI. Other Affirmative Defenses A. Statutory Defenses B. Reasonable Factor Other Than Age (RFOA) C. Bona Fide Occupational Qualification (BFOQ) D. Bona Fide Employee Benefit Plan Early Retirement Incentives Pensions

15 Detailed Table of Contents li 3. Severance Benefits Disability Benefits Health Insurance E. Bona Fide Seniority System F. Settlement and Release G. Good Faith Reliance on Administrative Actions XII. Remedies A. Statutory Provisions B. Equitable and Declaratory Relief Injunctions and Declaratory Relief Reinstatement and Instatement C. Back Pay D. Front Pay E. Liquidated Damages F. Compensatory Damages G. Punitive Damages H. Attorney s Fees I. Prejudgment Interest XIII. Intersection of the ADEA With ERISA Chapter 13. Disability I. Introduction II. Overview of Major Statutes A. The Americans with Disabilities Act General Structure of the ADA Title I of the Americans with Disabilities Act Title II of the Americans with Disabilities Act Title III of the Americans with Disabilities Act Americans with Disabilities Act Amendments Act of B. The Rehabilitation Act of General Structure of the Rehabilitation Act

16 lii EDL 2. Section 501 of the Rehabilitation Act Section 503 of the Rehabilitation Act Section 504 of the Rehabilitation Act a. General Provisions of Section b. Federal Financial Assistance c. Program or Activity Section 508 of the Rehabilitation Act C. The Jobs for Veterans Act of D. State and Local Laws III. Constitutional Issues A. Constitutional Protections for Persons With Disabilities Equal Protection Claims Due Process Claims B. The Eleventh Amendment and Sovereign Immunity Sovereign Immunity and Titles I and II of the ADA Sovereign Immunity and Section 504 of the Rehabilitation Act IV. Definition of Disability A. Impairment B. Major Life Activity ADAAA and EEOC Implementing Regulations Pre-ADAAA C. Substantial Limitation ADAAA and EEOC Implementing Regulations Pre-ADAAA D. Record of Disability E. Regarded as Disabled

17 Detailed Table of Contents liii 1. ADAAA and EEOC Implementing Regulations Pre-ADAAA V. Qualified Individuals With Disabilities A. Delineating Essential Job Functions Whether Employees Are Actually Required to Perform the Function at Issue Whether Removing the Function Would Fundamentally Change the Job Other Evidence Relevant to Whether a Particular Function Is Essential a. The Employer s Judgment b. Job Descriptions c. The Amount of Time Spent on the Job Performing the Function d. The Consequences of Not Requiring the Incumbent to Perform the Function e. The Terms of a Collective Bargaining Agreement f. Other Criteria B. Particular Functions Production Standards Ability to Perform Sufficient Functions of a Rotating-Function Job Job Progression Requirements Changing Job Requirements Attendance C. Impact of Statements Made in Applications for Benefits D. Role of Medical Evidence VI. Substantive Protections A. Introduction B. Disparate Treatment Prohibited

18 liv EDL C. Disparate Impact Prohibited D. Requirement to Make Reasonable Accommodation Overview Examples of Reasonable Accommodations a. Modifications to Physical Work Environment b. Readers, Interpreters, and Other Helpers c. Transportation-Related Accommodations d. Exceptions or Modifications to Neutral Policies or Practices e. Leaves of Absence (i.) Introduction (ii.) Indefinite leave (iii.) Sporadic absences (iv.) Alcoholism treatment programs f. Job Restructuring (i.) Modified duties, light duty (ii.) Switching supervisors (iii.) Part-time or modified schedules (iv.) Working at home (v.) Training [New Topic] g. Reassignment (i.) Introduction (ii.) No reassignment for applicants (iii.) Reassignment is accommodation of last resort (iv.) Vacancy required (v.) Employee must be qualified for new position

19 Detailed Table of Contents lv (vi.) Competing for a vacant position (vii.) Promotion and demotion (viii.) Impact of seniority system Impact of Collective Bargaining Agreements on Reasonable Accommodation Notice to the Employer Interactive Process E. Harassment Prohibited F. Discrimination Through Contractual or Other Relationships Prohibited Employer-Provided Health Insurance Employer-Provided Long-Term Disability Benefits G. Accessible Testing Required H. Discrimination on the Basis of Association Prohibited I. Limitations on Medical Inquiries and Examinations Introduction Preemployment Medical Examinations and Inquiries Entrance Medical Examinations Medical Examinations and Inquiries for Existing Employees Physical Agility Tests and Job Demonstrations J. Retaliation and Interference Prohibited VII. Burdens of Proof and Defenses A. Burdens of Proof Introduction Common Elements of Proof Proof Relevant to Disparate Treatment a. In General

20 lvi EDL b. Burden Shifting c. Mixed-Motive Analysis Eligibility Criteria and Disparate Impact Failure to Accommodate B. Affirmative Defenses Eligibility Criteria That Are Job-Related and Consistent With Business Necessity Undue Hardship Direct Threat to Health or Safety Special Defense Issues a. HIV and AIDS b. Food Handling Positions c. Drug or Alcohol Impairment VIII. Enforcement and Remedies Issues Unique to Disability Claims A. Under the ADA Agency Proceedings Private Suits Alternative Dispute Resolution Attorney s Fees B. Under the Rehabilitation Act Federal Government Employers Federal Contractors Recipients of Federal Financial Assistance and Federal Agencies a. Agency Enforcement b. Private Enforcement C. State and Local Laws Chapter 14. Genetic Information I. Introduction II. Scope of GINA A. Employment B. Insurance

21 Detailed Table of Contents lvii C. Who Is Protected? D. What Is Protected? III. Prohibited Employment Practices A. Acquisition of Information B. Confidentiality C. Discrimination in Employment IV. Enforcement A. Employees Covered by Title VII and the Government Employees Rights Act of B. Employees Covered by the Congressional Accountability Act of V. Provisions Relating to Health Insurance A. Prohibitions B. Enforcement Part III: Employment Actions Chapter 15. Retaliation I. Overview of 704(a) II. The Participation Clause III. The Opposition Clause A. Introduction B. The Requirement That the Employment Practice Opposed Be Unlawful Under Title VII C. Ambiguous Protests D. The Manner of Opposition Overview Picketing and Demonstrations Outside the Workplace Public Opposition to the Employer s Goals Work on the Employee s Complaint Rather Than Assigned Tasks Intra-Office Disruption

22 lviii EDL 6. Refusal to Perform Work E. The Special Role of Management and EEO Officers IV. Proof A. Elements of the Prima Facie Case B. The Protected Class C. The Adverse Action D. The Causal Connection Overview Proving Causation E. Mixed-Motive Retaliation Cases Mixed-Motive Proof in a Discrimination Case Mixed-Motive Proof in a Retaliation Case V. Relief in Retaliation Cases A. Reinstatement B. Section 706(f)(2) Preliminary Injunctive Relief VI. Alternative Causes of Action A. Introduction B. Private Employers Other Federal Employment Statutes The Civil Rights Act of The Civil Rights Act of National Labor Relations Act The Fair Labor Standards Act Other Federal Avenues Common Law Duties State Law C. State and Local Government Employers Section First Amendment Right of Free Speech First Amendment Rights to Petition for Redress of Grievances or Assembly

23 Detailed Table of Contents lix 4. Title IX of the Education Amendments Act of D. Federal Employees Chapter 16. Hiring I. General Considerations II. Defining the Applicant Pool A. Introduction B. Defining Applicant C. Applicant Flow Logs D. Word-of-Mouth Recruitment E. Nepotism F. Recruitment Sources G. Walk-In Applications H. Job Opportunity Advertising I. Deterred Applicants III. Selecting From the Applicant Pool A. Selection Criteria B. Proof of Hiring Discrimination C. Preemployment Inquiries D. Issues of Standing IV. Initial Job Assignments Chapter 17. Promotion, Advancement, and Reclassification I. Introduction II. Promotions Versus Lateral Transfers III. Publicizing and Applying for the Opening IV. The Plaintiff s Burden to Demonstrate Qualifications V. Experience Requirements and Seniority VI. Subjective Selection Criteria VII. Statistical Proof: The Qualified Actual or Potential Applicant Pool VIII. Remedies IX. Affirmative Action

24 lx EDL Chapter 18. Seniority I. Statutory Authority II. Seniority and Transfer Rights A. A Historical Perspective B. The Bona Fide Seniority System Defense C. Challenging Seniority Systems After Teamsters What Constitutes a Seniority System Bona Fides or Lack Thereof a. Standards for Evaluating Seniority Systems b. Application of the Four-Factor Test D. Timeliness of Challenges to Seniority Systems III. Seniority and the Remedial Power of Courts A. Introduction B. Constructive Seniority as a Remedy for Identifiable Victims of Discrimination C. Seniority and Affirmative Action Chapter 19. Compensation I. Overview II. The Equal Pay Act A. Coverage The Parties B. The Relevant Comparison Wages Employees of the Opposite Sex Establishment Equal Work C. Determining the Equality of Jobs The Applicable Standard

25 Detailed Table of Contents lxi 2. Equal Skill, Effort, and Responsibility Performed Under Similar Working Conditions D. Statutory Defenses Differences Pursuant to a Seniority System Differences Pursuant to a Merit System Differences Pursuant to a System Which Measures Earnings by Quantity or Quality of Production Differences Pursuant to a Differential Based on Any Factor Other Than Sex a. Factors Other Than Sex Generally b. Training Programs c. Market Rate d. Miscellaneous Other Factors E. Equal Pay Act Enforcement Mechanisms Administrative Enforcement Judicial Enforcement a. Relief Available b. Timeliness of Suit c. Jury Trial d. Collective Actions e. Retaliation III. Title VII Compensation Discrimination Claims A. Introduction B. Comparable Worth C. The Prima Facie Case Introduction Disparate Treatment Intentional Perpetuation of Past Discrimination

26 lxii EDL IV. The Interplay Between Title VII and the Equal Pay Act A. Background B. Scope of the EPA C. Prima Facie Case and Burden of Proof for EPA Cases D. Title VII Prima Facie Case and Burden of Proof E. Impact of the Bennett Amendment F. Other Procedural and Remedial Differences Between the Statutes Chapter 20. Sexual and other Forms of Harassment I. Introduction II. Sexual Harassment A. Overview and Historical Perspective The Origins of Sexual Harassment Jurisprudence Meritor Savings Bank v. Vinson The Quid Pro Quo/Hostile Environment Dichotomy The 1998 Supreme Court Harassment Trilogy a. Same-Sex Harassment b. Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth National Railroad Passenger Corp. v. Morgan Timeliness of Charge Filing Pennsylvania State Police v. Suders Constructive Discharge B. The First Element of a Sexual Harassment Case: The Conduct Is Because of Sex Introduction

27 Detailed Table of Contents lxiii 2. Common Types of Sexual Harassment a. Sexual Advances b. Gender-Based Animosity c. The Sexually Charged Workplace Same-Sex Harassment The Equal Opportunity Harasser Harassment Directed at Other Employees in the Protected Group a. Introduction b. Third-Party Sexual Harassment Claims Based on Relationship Between Supervisor and Subordinate (i.) Coercive relationships between supervisors and (ii.) subordinates Consensual relationships between subordinates and supervisors c. Third-Party Hostile Work Environment Harassment C. Element Two: The Behavior Is Severe or Pervasive Hostile Work Environment Sexual Harassment The Evolution of the Severe or Pervasive Requirement Assessing Severe or Pervasive The Standard for Evaluating Whether the Conduct Is Severe or Pervasive D. Element Three: The Behavior Is Unwelcome E. Element Four: The Basis for Employer Liability

28 lxiv EDL 1. Introduction Harasser Is a Supervisor or Manager What Is a Tangible Employment Action? Constructive Discharge as a Tangible Employment Action Lack of a Tangible Employment Action a. Introduction b. What is Reasonable in the Context of the Ellerth/Faragher Affirmative Defense? c. Reasonable Care to Prevent Sexual Harassment d. Reasonable Care to Correct Sexual Harassment e. Unreasonable Failure to Take Advantage of Preventative or Corrective Opportunities or to Avoid Harm Otherwise Harasser Is a Co-Worker a. The Negligence Standard b. Notice to the Employer c. The Employer s Remedial Response Employer Responsibility for Hostile Environment Harassment Based on the Conduct of Non-Employees Retaliation Through Harassment III. Harassment on Bases Other Than Sex A. Introduction B. Race, Color, and National Origin C. Religion D. Age E. Disability IV. Special Issues in Harassment Cases

29 Detailed Table of Contents lxv A. Discovery Introduction Behavior of the Plaintiff Discovery of Plaintiff s Psychological and Medical Condition Discovery From Defendants B. Evidence Introduction Evidence of Plaintiff s Prior Sexual Conduct Rule Evidence Concerning Prior Conduct of Alleged Harasser C. Experts Introduction Expert Testimony on the Plaintiff s Psychological and Mental Condition Expert Testimony on the Reasonable Woman or Reasonable Victim Expert Testimony on Employer Policies and Procedures D. Relief Introduction Injunctive Relief Compensatory Damages Punitive Damages Part IV: The Parties Chapter 21. Discharge and Reduction in Force 21-1 I. Introduction II. Disparate Treatment Discharge Cases A. The Allocation of Proof B. The Plaintiff s Prima Facie Case

30 lxvi EDL C. The Employer s Legitimate, Nondiscriminatory Reason and the Plaintiff s Burden to Show Pretext for Discrimination III. Disparate Impact Discharge Cases IV. Constructive Discharge A. Introduction B. Establishing a Constructive Discharge Claim C. Necessity of Aggravating Factors Chapter 22. Employers I. Private Sector Employers A. Who Is an Employer? Definition a. Statutory Provisions b. Who May Be Counted as Employees? c. How the Counting Is Done Determining Who Is the Employer a. Introduction b. The Single Employer Theory c. The Joint Employer Theory d. The Agent Theory B. Certain Exemptions and Exclusions From Employer and Employee Status Introduction Bona Fide Private Membership Clubs Exemption of Elected Officials, Policymaking Appointees, and Their Advisors Aliens Employed Outside the United States Extraterritorial Employment by U.S. Companies

31 Detailed Table of Contents lxvii 6. Coverage of Foreign Employers a. Foreign Employers Operating in the United States b. Extraterritorial Activities of Foreign Employers The National Security Exemption II. Public Sector Employees Sovereign Immunity A. Introduction B. Abrogation of Sovereign Immunity by Federal Statutes Introduction The Clear Statement Rule of Statutory Interpretation The Validity of Federal Statutes Abrogating State Sovereign Immunity a. Statutes Whose Validity the Supreme Court Has Resolved b. Statutes Whose Validity Has Not Been Resolved by the Supreme Court C. Governmental Entities Entitled to Sovereign Immunity D. Waivers of Sovereign Immunity Introduction Waiver by Statute Waiver by State Activities Waiver in Litigation E. Limitations on Remedies Against Individuals Introduction Actions Against Officials in Their Individual Capacities a. Permissible Forms of Relief b. Statutory Bars to Suits Against Individuals in Their Official Capacities

32 lxviii EDL c. Injunctions to Enforce State Law Actions Against Individuals in Their Personal Capacities Chapter 23. Unions I. A Union s Liability for Its Own Discrimination A. Liability of a Union in Its Role as an Employer B. Liability of a Union in Its Role as a Union Discrimination With Respect to Membership Discrimination With Respect to Employment Referrals Discrimination With Respect to Union Office Discrimination With Respect to Apprenticeship Programs Breach of the Duty of Fair Representation a. Origins and Scope of the Duty b. Handling of Grievances c. Grievance Settlements d. Bargaining Obligations Failure to Accommodate a. Religious Beliefs and Practices b. Disabilities Liability for the Acts of Union Agents Liability of Regional and International Unions C. Federal Preemption of State Discrimination and Tort Claims II. Joint Union-Employer Liability

33 Detailed Table of Contents lxix A. Joint Liability for Discrimination Premised on the Provisions of a Collective Bargaining Agreement B. Joint Liability for Acquiescing in Employer Discrimination Not Premised on Discriminatory Provisions in a Collective Bargaining Agreement C. Union Liability for Inducing Employer Discrimination D. Employer Liability for Union Discrimination E. Procedural Issues in Cases of Joint Liability Contribution Joinder of Unions as Co-Defendants in Suits Against Employers Joinder of Employers as Co- Defendants in Suits Against Unions III. Other Procedural Issues Involving the Role of Unions in Employment Discrimination Cases A. A Union as Plaintiff B. A Union as Class Representative C. A Union as Intervenor IV. Union Challenges to Employer Actions Taken Pursuant to Conciliation Agreements and Court or Government Directives A. Joinder or Concurrence of the Union B. Grievance Arbitration by Unions C. Lawsuits by Unions Chapter 24. Employment Agencies I. Overview II. Definition of an Employment Agency

34 lxx EDL III. Unlawful Practices A. Initial Processing of Applicants B. Accepting Discriminatory Job Orders C. Discriminatory Referrals D. Agency Employee Complaints E. EEOC Investigations of Alleged Unlawful Practices F. Agency Liability for Unlawful Practices of Clients G. Joint Employer Employment Agency Liability Part V: Procedural Issues Chapter 25. Charging Parties and Plaintiffs I. Introduction II. Charges Filed by Persons Who Are Members of the Protected Group in Question and Affected by an Adverse Employment Decision or Practice A. Is the Charging Party Personally Aggrieved? B. Is the Charging Party Protected by Title VII? Undocumented Aliens Independent Contractors Partners and Other Owners Volunteers Union Stewards Former Employees C. Personal Staff Exemption D. Other Politically Related Exemptions III. Charges Filed by Persons Who Are Members of the Protected Group But Who Are Not Directly Affected by an Adverse Employment Action

35 Detailed Table of Contents lxxi IV. Charges Filed by Persons Who Are Not Members of the Protected Group But Still Claim to Be Aggrieved V. Charges on Behalf of an Aggrieved Person VI. Charges Filed by an Organization Itself Claiming to Be an Aggrieved Person VII. Testers VIII. Commissioner Charges Chapter 26. EEOC Administrative Process I. Structure and Statutes Enforced A. Structure of the EEOC B. Statutes Enforced Title VII ADEA and EPA ADA Lilly Ledbetter Fair Pay Act of Genetic Information Non- Discrimination Act of 2008 (GINA) II. General Administrative Powers A. Rulemaking Powers Regulations Subregulatory Guidance B. EEOC Posting Requirements C. Records and Reports Recordkeeping Reports Required Under Title VII Records to Be Made or Kept Preservation of Records Made or Kept Consequences of Failure to Preserve Records III. The EEOC Enforcement Process A. Evolution of the Current System B. What Is a Charge?

36 lxxii EDL C. Place for Filing Charge and Venue D. The Intake and Initial Investigation of a Charge E. Deferral and Contracts With State and Local Agencies F. Service of Notice of the Charge on the Respondent G. Administrative Closures Withdrawal Failure to Locate/Failure to Cooperate Other Administrative Closures H. EEOC s Mediation Program I. Settlement Pre-Determination Settlements, Negotiated Settlements, and Settlement of Commissioner Charges J. Investigations and Determinations The Assignment Process and the Respondent s Position Statement Requests for Information (RFIs) and On-Site Reviews Fact-Finding Conference Adverse Inference Rule Scope of the Investigation Determination Interview and the Investigative Memorandum EEOC Letters of Determination and EEOC Decisions Reconsideration K. The Conciliation Process L. Issuance of Notice of Right to Sue Under Title VII, the ADA, and GINA [Revised Heading] M. Role of Attorneys During the Administrative Enforcement Process In Court

37 Detailed Table of Contents lxxiii N. The Systemic Program O. Interagency Coordination IV. EEOC Investigation and Subpoena Powers A. Statutory Authority Title VII, the ADA, and GINA [Revised Heading] The ADEA and the EPA B. The Valid Charge Requirement Under Title VII, the ADA, and GINA [Revised Heading] C. Permissible Scope of Inquiry V. Access to EEOC Files and Admissibility of the EEOC Determination A. Access to EEOC Files Statutory Framework a. Title VII, the ADA, and GINA [Revised Heading] b. The Freedom of Information Act The EEOC s Procedure on Disclosure of Files What the EEOC May and Must Remove From the File Prior to Disclosure to a Party Federal Employees Procedures B. Admissibility of EEOC Findings Chapter 27. Timeliness I. Overview A. History B. Scope II. Timeliness of Filing the EEOC Charge A. The 180/300-Day Limitations Periods General Charge-Filing Requirements EEOC Deferral Procedure When Prior Resort to a State or Local Agency Is Required

38 lxxiv EDL a. State Law Must Authorize an Appropriate Agency to Prosecute the Claim of Discrimination b. No Need for Deferral With Respect to Every Incident Deferral Mistakes by Charging Parties and Cure of Such Mistakes Availability of the 300-Day Filing Period Effect of State Action or Inaction on Title VII Rights a. State Inaction b. State Action Effect of Complainant s Failure to Verify Charge B. When Did the Discrimination Occur? Individual Acts Application of Policies Continuing Violations a. National Railroad Passenger Corp. v. Morgan b. Discrete Acts c. Hostile Work Environment Claims in the Post-Morgan Era Claims for Compensation Discrimination a. Failure to Respond to an Employee s Request for a Raise b. Failure to Promote The Present Effects of Past Discrimination C. Tolling of the Charge-Filing Period A Jurisdictional Prerequisite, or a Statute of Limitations That May Be Tolled for Equitable Reasons? The Effect of Equitable Tolling or Estoppel

39 Detailed Table of Contents lxxv 3. Tolling Because of Resort to Another Forum Other Grounds for Estoppel and Tolling a. Employer Misconduct b. Plaintiff s Exercise of Due Diligence c. Government Misconduct or Negligence d. Wrong Forum Piggybacking or the Single- Filing Rule III. Timeliness of Filing Suit A. Introduction B. Statutory and Regulatory Framework C. Time of Issuing Notice of Right to Sue The EEOC Is Not Required to Issue Notice Within a Specified Period After the Charge Is Filed Preliminary Relief Before Receiving Right-to-Sue Notice Premature Issuance of Right-to-Sue Notices and Premature Filing of Suit D. Timely Court Filing Form of Right-to-Sue Notice and Multiple Notices What Triggers Commencement of the 90-Day Period What Constitutes a Filing Tolling Laches and Related Issues Effect of Tolling Statute Chapter 28. Jurisprudential Bars to Actions I. Preclusion

40 lxxvi EDL A. Preclusion Issues Resulting From Prior Resort to Another Forum Introduction Preclusive Effect of Prior State Court Judgments and Reviewed State Administrative Decisions Preclusive Effect of State Court Judgments on Claims Not Raised Preclusive Effect of Prior Unreviewed State Administrative Decisions Preclusive Effect of Prior Federal Proceedings Preclusion Where the First Action Is Dismissed on Procedural Grounds Preclusion Based on Prior Federal Agency Determination Preclusion Based on Federal Agency and Individual Litigation Preclusive Effect of Prior Arbitration Decisions B. Judicial Estoppel and Preclusive Effect of Prior Sworn Statements C. Issue Preclusion II. Exhaustion of Remedies III. Justiciability Doctrines as Bars to Action A. Introduction The Justiciability Doctrine of Standing The Justiciability Doctrines of Ripeness and Mootness IV. Preemption as a Bar to Action V. Forum-Selection Clause as a Bar to Action [New Topic] Chapter 29. Title VII Litigation Procedure I. Overview

41 Detailed Table of Contents lxxvii II. Effect of Deficiencies in the EEOC Administrative Process on Charging Party s Right to Sue A. Introduction B. EEOC Duty to Serve Notice of the Charge on Respondent C. EEOC Failure to Investigate and/or Conciliate D. Charge Not Under Oath E. EEOC Failure to Issue Notice of Right to Sue When Charging Party Is Entitled to It III. Suit Against Parties Not Named in EEOC Charge A. Introduction B. Circumstances in Which Joinder of an Unnamed Party Has Been Permitted Joinder Where Injustice Would Otherwise Result to Plaintiff and Defendant Named in EEOC Charge Joinder of Parties Necessary for Purposes of Modifying Seniority Provisions of Collective Bargaining Agreements Joinder Where There Is an Agency Relationship or Substantial Identity Between the Named Party and the Unnamed Defendant Joinder Where Named Party Since Has Been Acquired, Merged With, or Succeeded by a Different Entity C. Necessary and Indispensable Parties D. Joinder of One Defendant by Another IV. Scope of EEOC Charge as Limiting the Scope of a Title VII Lawsuit A. Basic Rationale B. Application of Rationale