PENNSYLVANIA EMPLOYMENT DISCRIMINATION PROFESSOR ERIC TILLES UNIVERSITY OF PENNSYLVANIA SCHOOL OF LAW

Transcription

1 PENNSYLVANIA EMPLOYMENT DISCRIMINATION PROFESSOR ERIC TILLES UNIVERSITY OF PENNSYLVANIA SCHOOL OF LAW CHAPTER 1: STATUTES GOVERNING DISCRIMINATION A. Overview Basic apprach: Three statutes are ptential subjects f bar exam questins: Title VII f the Civil Rights Act f 1964, The Americans With Disabilities Act (ADA), and The Age Discriminatin in Emplyment Act (ADEA). The types f claims that may be brught under each f these statutes generally may be very similar. The first element wuld be fr a plaintiff t bring a prima facie case. What yu need t d in each questin is: Identify the statute(s) applicable t the situatin raised; Determine what the prima facie case is fr the plaintiff in each f thse statutes. Individual disparate treatment: A single plaintiff alleges his emplyer has discriminated against him intentinally because f his membership in a prtected class. These cases can be brught with direct r circumstantial evidence Systemic disparate treatment: An emplyer has discriminated against an entire class thrugh the use f a plicy Disparate impact case: Sme neutral plicy that an emplyer has adpted has a statistically-significant adverse effect against a prtected class, s that in this type f case the plaintiffs d nt need t allege that intentinal discriminatin has ccurred Under sme statutes, there are mre specific types f claims that can be brught. There is a separate bdy f law that addresses harassment in the wrkplace, t be discussed later. Individuals wh file claims f discriminatin r wh participate in the investigatin r prsecutin are prtected by anti-retaliatin prvisins in the statutes. Accrdingly, thse individuals are prtected frm retaliatin, and if they are retaliated against, may bring a claim against their emplyer. Each statute has a prcedure fr bringing a claim administrative prerequisites. Analyzing questins n the exam: The first step in analyzing any questin is t determine which statute(s) apply: Is the emplyer cvered by the statute?

2 Is the emplyee cvered by the statute? Which prtected class(es) the ptential plaintiff belngs t (this will determine which statute(s) apply in the hypthetical situatin) B. Title VII Title VII prtects individuals against discriminatin based n race, clr, natinal rigin, sex, r religin. If smene applies fr a psitin and she des nt have the minimum skills fr the jb, will that persn be able t state a claim that Title VII has been vilated? N. Title VII prtects individuals frm discriminatin nly the bases stated abve. 1. Defendants T be cvered by Title VII, an emplyer needs t emply 15 r mre emplyees. 2. Plaintiffs Applicants, current emplyees, and frmer emplyees are prtected by Title VII. 3. What is an Emplyee? An emplyee is smene whse wrk and hurs are cntrlled by the emplyer. Independent cntractrs are nt emplyees, and s are nt prtected by Title VII. Example 1: ABC Crp. retains Je the Plumber t fix its pipes. While ding the jb, Je the Plumber brings his wn tls, sets his wn hurs, and determines hw the pipes shuld be fixed. Des Title VII ptentially apply t Je the Plumber?. Je is an independent cntractr, nt an emplyee. Example 2: ABC Crp. hires Bill but nt Sue t wrk as a claims manager. Is it pssible fr Sue t raise a claim under Title VII even thugh she has never wrked fr ABC Crp.? Why?. Within Title VII, "emplyee" is defined bradly enugh t include applicants. a. Race It is imprtant t remember that race includes bth a ptential plaintiff's actual racial grup, and als the racial grup the defendant believes the plaintiff belngs t. In additin, Title VII prhibits "." Emplyers may nt use membership in any racial grup against an individual. It des nt matter if the persn is a member f the majrity r a minrity. b. Clr Clr discriminatin prhibits discriminatin based n the hue f a persn's skin Themis Bar Review, LLC PA Emplyment Discriminatin

3 c. Natinal Origin Natinal rigin discriminatin refers t discriminatin based n a plaintiff's ancestry,, r language. Example 3: ABC Crp.'s emplyees wrk in an ffice filing dcuments. Each emplyee has his r her wn files and respnsibilities. It is rare that ne emplyee needs t talk t anther abut jb respnsibilities. Des it vilate Title VII if ABC Crp. adpts an "English-nly" rule? Yes. This wuld nly be permissible if it prmted safety r efficiency in the wrkplace. d. Religin Religin is bradly defined under Title VII. Title VII will apply t and prtect any sincerely held belief, even if the belief is nt "." If an emplyee's religius belief cnflicts with a requirement f their jb, the emplyer will have an bligatin t determine if a reasnable accmmdatin exists fr that emplyee. e. Sex Title VII prhibits discriminatin against men and wmen. The wrd "sex" specifically includes,, and medical cnditins related t childbirth and pregnancy. The term "sex" des nt include. Example 4: Bb the Bss tells Sue that if she gets pregnant he will fire her. He says it is nt discriminatin because he prmises t fire any man wh gets pregnant. Is Bb crrect?. Discriminating against a wman because she is pregnant is always discriminatin under Title VII. f. Steretypes Emplyers are prhibited by Title VII frm taking an adverse emplyment actin against an emplyee fr failing t meet steretypical assumptins abut hw a prtected class shuld behave. g. Nt Sexual Orientatin Title VII des nt prtect emplyees frm discriminatin based n sexual rientatin. Example 5: D either f these tw emplyment actins vilate Title VII: i) Acme fired the plaintiff because he is gay. ii) Acme fired the plaintiff because he is nt mach. PA Emplyment Discriminatin 2016 Themis Bar Review, LLC 3

4 . The secnd actin vilates Title VII because it is an adverse emplyment actin based n an emplyee's failure t meet steretypical assumptins. CHAPTER 2: AMERICANS WITH DISABILITIES ACT (ADA) Basic Apprach: The ADA prhibits discriminatin by emplyers against qualified individuals with disabilities. Remember that the ADA has fur distinct definitins f "disability": 1) disability; 2) Recrd f disability; 3) Emplyer as having a disability (even if they dn't); and 4) Having a t a persn with a disability. In any given case, each definitin must be discussed separately. In cases where there is an actual disability, the emplyer will be required t determine if there is a reasnable accmmdatin that can be made that wuld permit a plaintiff t perfrm the essential elements f the jb, r prve that prviding an accmmdatin wuld cause the emplyer an undue hardship r create a direct threat t the safety r health f ther emplyees. 1. Defendants T be cvered by the ADA, an emplyer needs t emply r mre emplyees. State, but nt lcal, gvernments are immune frm mnetary liability under the ADA. 2. Plaintiffs Applicants, current emplyees, and frmer emplyees may be prtected frm discriminatin if they meet ne f the definitins f "disability" and are qualified t perfrm the essential functins f a jb, with r withut a reasnable. 3. The Fur Definitins f Disability Understanding the fur distinct definitins f disability, and applying each definitin independently, is key t prperly addressing an ADA issue. Hwever, keep in mind that in recent amendments t the ADA, Cngress has made clear that the definitins f disability shuld be cnstrued bradly in favr f prviding cverage t individuals. B. Actual Disability Under the ADA, an actual disability exists when a persn has any mental r physical impairment that at least ne majr. The fundamental issues here are "majr life activity" and "substantial limitatin." Recent amendments t the ADA have clarified that eating, sleeping, standing, lifting, reading, thinking are majr life activities, and that "majr life activity" als includes bdily functins such as the immune system, nrmal cell grwth. Under the ADA, "substantial Themis Bar Review, LLC PA Emplyment Discriminatin

5 limitatin" shuld nt be used t bradly exclude individuals frm cverage. A substantial limitatin n a majr life activity need nt prevent a persn frm perfrming a majr life activity. In additin, it need nt severely restrict a persn frm perfrming a majr life activity. Example 6: A plaintiff has suffered fr years frm migraine headaches that affect the plaintiff's sleep. The plaintiff's dctr has determined that there is n knwn cure and that the cnditin will last indefinitely. On any given night, the plaintiff des nt sleep mre than tw hurs cntinuusly. Des the plaintiff have an "actual disability"? Step 1: Identify the majr life activity that may be implicated. Step 2: Determine whether that majr life activity is substantially limited, as cmpared t mst f the peple in the general ppulatin, by evaluating: i. Nature and severity f the limitatin ii. Duratin iii. Impact n the individual Step 3: Cnclusin: Here, the plaintiff des have an actual disability. Sleep is cnsidered a majr life activity under the ADA. Tw hurs f cntinuus sleep is less than the cntinuus sleep received by the general ppulatin and it has existed fr a perid f time and is expected t cntinue indefinitely. Example 7: Wuld yur answer change if the plaintiff's dctr prescribed medicatin that permitted Plaintiff t sleep thrugh the night, every night?. Under recent amendments t the ADA, when assessing whether r nt a persn is disabled, the persn must be assessed in an unmedicated state. Example 8: Is such medicatin relevant at all?. Because the medicatin will affect questin f whether r nt the persn needs a reasnable accmmdatin. Eyeglasses and cntact lenses are an exceptin, and an individual will nt be cnsidered disabled if lenses bring his r her visin within the range f mst f the peple in the general ppulatin. Example 9: Wuld yur answer change if the sleep disrder was episdic, and disrupted the plaintiff's sleep nly nce every 6 weeks?. Same recent amendments t ADA make clear that episdic cnditins (r cnditins in ttal remissin) may als qualify as an actual disability during thse perids f time that they are active. PA Emplyment Discriminatin 2016 Themis Bar Review, LLC 5

6 Epilepsy, MS, hypertensin, asthma, and diabetes are included in this categry. Example 10: ABC C. terminates the emplyment f the plaintiff after a drug and alchl test indicates that the plaintiff was at wrk while under the influence f alchl. The plaintiff tells ABC C. that they cannt terminate the plaintiff's emplyment because the plaintiff is an alchlic, which is a disability prtected by the ADA. Is the plaintiff crrect?. An emplyer may prhibit emplyees frm cming t wrk under influence f alchl and may take apprpriate disciplinary results. Example 11: ABC C. terminates the emplyment f the plaintiff because it learned that the plaintiff had been addicted t ccaine and cmpleted a supervised drug rehabilitatin prgram. The plaintiff has always been a satisfactry emplyee. Des the terminatin f the plaintiff's emplyment vilate the ADA?. Cmpany wuld be regarding the plaintiff as disabled the ADA prvides a safe harbr fr individuals that have cmpleted such a prgram and are nt currently using drugs. C. Recrd f Disability This definitin applies t individuals wh have recvered frm a cnditin that nce substantially limited a majr life activity. This may apply when persn is a cancer survivr. D. Regarded as Having a Disability This definitin f disability prhibits emplyers frm treating an individual as if he r she had an impairment, when in fact they d nt. Recent amendments t the ADA make clear that the emplyer des nt have t believe that the impairment rises t the level f an actual disability. If an emplyer takes an emplyment actin based n an impairment, r the belief that an impairment exists, the emplyer has regarded the persn as disabled, unless the impairment is transitry and minr. Example 12: A plaintiff recently recvered frm a car crash. Immediately after the crash, his dctr restricted the plaintiff t ffice wrk because the plaintiff culd nt lift mre than five punds. The plaintiff's dctr has nw determined that the plaintiff is fine, and has released the plaintiff t regular duty. The plaintiff's emplyer refuses t return the plaintiff t regular duty because the emplyer mistakenly believes that the plaintiff will nt fully recver frm the crash. Is this a vilatin f the ADA?. Even thugh the plaintiff is nw nt actually disabled, emplyer has vilated ADA by regarding the plaintiff as disabled Themis Bar Review, LLC PA Emplyment Discriminatin

7 E. Relatinship t a Persn with a Disability Here, the plaintiff seeks prtectin under the ADA based n sme ther persn's disability. Be sure t determine that the ther persn has a disability under ne f the ther three definitins f the ADA, including regarded as. CHAPTER 3: AMERICANS WITH DISABILITIES ACT (CONT'D) 1. Elements f a Failure t Accmmdate Claim Emplyers are required t prvide qualified individuals with disabilities with if the reasnable accmmdatin will permit the individual t perfrm the essential elements f the jb. In additin t the definitin f "actual disability," the key cncepts here are: What it means t be " ;" What "essential jb functins" are; and What is a "reasnable accmmdatin?" Each f these elements shuld be addressed separately in any questin invlving an alleged failure t accmmdate. a. Qualified Simply having the requisite skills and experience; r Meeting the minimum requirements determined by emplyer. b. Essential Jb Functin Des the psitin exist t perfrm that functin? Example 13: Typing wuld be an essential jb functin fr a typist. Des the functin need t be dne and are there nly a limited number f peple t d it? Example 14: There are tw night shift emplyees in the warehuse and 100- pund bags need t be mved at night. It is essential fr each emplyee t be able t lift at least 50 punds. Is the functin? Example 15: Having a cmmercial driver's license wuld be essential t an ver the rad trucker. c. Reasnable Accmmdatin Any change t prcedure, the jb, r that permits a qualified individual with a disability t perfrm the essential functins f the PA Emplyment Discriminatin 2016 Themis Bar Review, LLC 7

8 psitin. If n accmmdatin can be made in their current psitin, mving the emplyee t an pen psitin fr which they are qualified may be a reasnable accmmdatin. There is n requirement that an emplyee be permitted t "bump" anther emplyee ut f their psitin. Example 16: The plaintiff has been a successful typist at ABC C. fr 10 years. The plaintiff develps carpal tunnel syndrme and cannt lift mre than 10 punds r type fr mre than 30 minutes at ne time withut taking a fiveminute break. The plaintiff's supervisr agrees that the plaintiff will be able t cmplete all the typing that is required f the plaintiff if the plaintiff is permitted t take a five-minute break every half hur and that the plaintiff's jb des nt require the plaintiff t lift mre than 10 punds. Shuld ABC C. permit the plaintiff t take a five-minute break every 30 minutes?. The plaintiff is actually disabled, is qualified fr the psitin and the break will permit her t cmplete the essential elements f the jb. 2. Interactive Prcess The "interactive prcess" is hw the emplyer and emplyee exchange infrmatin. If a disability is apparent, r if an emplyee makes knwn that they have a disability that is preventing them frm perfrming the essential elements f their jb, the ADA requires the emplyer t discuss ptential reasnable accmmdatins with the emplyee. Nte that emplyers are restricted frm perfrming, generally, s that if an emplyee des nt cme frward and if a disability is nt apparent, then there is n requirement that the emplyer enter int the interactive discussin r prvide a reasnable accmmdatin. Similarly, the emplyee is required t engage in the interactive prcess by prviding medical r ther infrmatin abut their capabilities. Emplyers are nt required t prvide the exact accmmdatin requested by the emplyee. The emplyer may prvide any reasnable accmmdatin that effectively permits the emplyee t perfrm the essential functins f the jb. Example 17: Suppse an emplyee has carpal tunnel syndrme develped due t an assembly line that is three inches t high. The emplyee requests that line be drpped by three inches. Accmmdatin need nly be effective; therefre a platfrm wuld be reasnable accmmdatin. Example 18: The plaintiff is Acme C.'s nly receptinist. The plaintiff is required t be the first ne in the ffice in the mrning t greet custmers, and must schedule breaks and all time ff in advance t ensure that there is always smene at the frnt desk. The plaintiff develps hypglycemia, an impairment cncerning lw bld sugar, which makes her attendance spradic and unpredictable. The plaintiff asks Acme fr a flexible schedule that wuld permit Themis Bar Review, LLC PA Emplyment Discriminatin

9 the plaintiff t cme and g withut prir ntice. Must Acme prvide this accmmdatin? Why?. because predictable attendance is an essential element f the plaintiff's jb. Acme wuld have t explre ther alternatives that wuld nt have the same attendance requirements. Example 19: Assume the same facts as in the hypthetical abve. In additin, there is a psitin in the cmpany that the plaintiff culd perfrm because it des nt have strict attendance requirements, but anther emplyee hlds that psitin. Is Acme required t "bump" the emplyee wh currently hlds that psitin in rder t give the plaintiff a jb?. 3. Undue Hardship The cncept f "undue hardship" is clsely related t "reasnable accmmdatin." If a plaintiff can demnstrate that a reasnable accmmdatin exists that wuld permit the plaintiff t perfrm the essential functins f the jb, the plaintiff's emplyer may nly refuse t prvide the accmmdatin if the plaintiff's emplyer can prve that the accmmdatin wuld cause an undue hardship. T prve an undue hardship, the emplyer must shw that the accmmdatin wuld impse significant r significant in light f its size and financial resurces f that emplyer. Large emplyers are expected t make greater accmmdatins than small emplyers. 4. Medical Examinatins The ADA places restrictins n when an emplyer may require an emplyee t submit t a medical exam. When hiring, an emplyer may require a medical exam nly after making an ffer f emplyment, by cnditining the ffer f emplyment n successfully passing the exam. Current emplyees may nly be required t take a medical exam when the exam is jbrelated and cnsistent with. Example 20: The plaintiff has wrked fr ABC C. fr 10 years. The plaintiff's psitin requires the plaintiff t climb ladders t the rf f ABC C.'s building and t walk n narrw elevated walkways. The plaintiff suffers a back injury while wrking in the garden at hme, and is put in tractin fr three weeks. Upn returning t wrk, the plaintiff has a nticeable limp and is unsteady while walking. May ABC C. require theplaintiff t underg a medical exam t determine the plaintiff's ability t walk and climb?. This wuld be jb-related and be cnsistent with jb necessity. PA Emplyment Discriminatin 2016 Themis Bar Review, LLC 9

10 CHAPTER 4: AGE DISCRIMINATION IN EMPLOYMENT ACT (ADEA) 1. Defendants T be cvered by the ADEA, an emplyer needs t emply r mre emplyees. The ADEA als applies t an emplyer's executives, managers, and. As under the ADA, states may nt be sued fr mnetary damages. 2. Plaintiffs The ADEA prtects individuals wh are 40 years ld and lder. Reverse discriminatin claims d nt exist under the ADEA. 3. Exemptins Example 21: The plaintiff was brn in ABC C. terminated the plaintiff's emplyment in rder t replace the plaintiff with smene wh was brn in May the plaintiff bring a claim under the ADEA?. Thugh the plaintiff is in a prtected class, he still cannt state a claim because he was replaced with an lder persn. The ADEA des nt prtect sme classes f emplyees: bna fide executives; ; and sme elected and appinted gvernment fficials. 4. Defenses The ADEA prvides emplyers with three statutry defenses: (i) bna fide ccupatinal qualificatin (BFOQ), (ii) reasnable factr ther than age (RFOA), and (iii). a. BFOQ This defense may be available when an emplyer adpts a plicy that specifically relies n age as an emplyment criterin. An emplyer must meet a high standard fr establishing the BFOQ defense. The emplyer must shw that the requirement must be reasnably necessary t the essence f the emplyer's business. Additinally, all r substantially all lder excluded individuals must be unable t perfrm the jb safely and efficiently, r dealing with individuals, as ppsed t the grup, wuld be impractical. The emplyer must be able t shw that age is empirically linked t a decline in jb cmpetency. In cnsidering a BFOQ, remember that this is a very narrw exceptin. Editr's Nte 1: The prfessr misspeaks slightly here, replacing an "r" with an "and." The rule is crrect as stated abve. Example 22: pilts Themis Bar Review, LLC PA Emplyment Discriminatin

11 b. RFOA The RFOA defense plays a rle in disparate impact claims. As will be discussed later, a disparate impact claim is a claim brught by a plaintiff alleging that a neutral plicy has a statistically adverse effect against the plaintiff's prtected class. The RFOA defense permits emplyers t rely n such neutral plicies even if the plicy has an adverse effect against lder wrkers. Example 23: Acme Delivery Crp. is a business that prvides bicycle delivery service f packages in Scrantn, Pa. Acme adpts a plicy requiring applicants t prve that they can bicycle five miles in 10 minutes. The plaintiff is 87 years and is nt hired because he fails t prve that he can meet the five-mile test. What defense is available t Acme and why? Only the RFOA. Emplyment plicy at issue des nt refer t an individual's age at all. 5. Early Retirement Incentive Plans The underlying plicy here is that a vluntary severance plan is treated by the law as a, and cannt be used as the basis f an age discriminatin claim. Example 24: ABC C. decides it needs t reduce the number f emplyees it emplys. T d this, ABC C. ffers an early retirement plan nly t emplyees age 55 and abve. Emplyees accepting the plan will receive an additinal $1000 per year during their retirement. Des ABC C.'s early retirement plan vilate the ADEA?. The plan is vluntary and is treated by the curts as a benefit t lder wrkers. 6. Bna Fide Senirity Systems and Emplyee Benefit Plans The ADEA recgnizes that is a valid criterin fr an emplyer t use in prviding benefits and awarding pen psitins. 7. Older Wrker Benefit Prtectin Act (OWBPA) The OWBPA prtects emplyees cvered by the ADEA by prhibiting emplyers frm rushing them t decide whether t sign a waiver f ADEA rights in return fr a severance package. The OWBPA requires emplyers t write waivers s that they are understd, refer specifically t the ADEA s that emplyees knw that they will nt be able t sue fr age discriminatin, and advise emplyees t cnsult with a lawyer. Emplyees have days t revke the agreement after they sign it. In additin, if a single emplyee is being ffered a waiver, that individual must be given 21 days t cnsider signing the waiver. When mre than ne emplyee is being ffered a waiver, the grup f emplyees must be given 45 days t cnsider the waiver. In additin, PA Emplyment Discriminatin 2016 Themis Bar Review, LLC 11

12 when mre than ne persn is being ffered a release, each f the emplyees being ffered must be prvided by the emplyer a descriptin wh is eligible fr the severance package. In additin, each is required t be given a list f jb classificatins and the ages f the peple in each jb f thse being ffered severance and thse remaining at the cmpany. CHAPTER 5: TYPES OF CLAIMS: INDIVIDUAL DISPARATE TREATMENT A. Basic Apprach 1. Identify the statute and the type f claim being brught. 2. Determine the elements f the plaintiff's. 3. Determine what burden f prf will be shifted t the emplyer, and the elements f the emplyer's respnse. 4. Finally, assuming the emplyer has met its burden, determine the remaining elements f the plaintiff's case and evaluate whether the plaintiff has met that burden. B. Individual Disparate Treatment This is the mst cmmn type f discriminatin claim. An individual disparate treatment claim arises when a single emplyee alleges that an emplyer intentinally discriminated against them because f their membership in a prtected class. 1. Direct Evidence A plaintiff can meet her burden f prving intentinal discriminatin by prducing a dcument, r identifying a statement made by the emplyer, that shws that an adverse emplyment actin was taken against the plaintiff because f her membership in a prtected class. Remember t distinguish between direct evidence and. Direct evidence is a statement by a decisin-maker while deciding t take the emplyment actin in questin. Other statements will nt be direct evidence. Rather they will be cnsidered "stray remarks" that may supprt a circumstantial evidence claim, discussed belw. Example 25: ABC C. hires a new plant manager, wh is male. One f the prductin line wrkers, wh had n invlvement with the selectin f the new plant manager, said "it was time t shw a man culd run the peratin better." Culd a female wh was rejected fr the psitin f plant manager rely n that statement as direct evidence f discriminatin?. This is a stray remark. Prductin line wrker did nt have decisin-making authrity and was nt invlved in the decisin Themis Bar Review, LLC PA Emplyment Discriminatin

13 2. Circumstantial Evidence Mst plaintiffs cannt usually prduce "smking gun" evidence f discriminatin. In rder t prve a discriminatin case thrugh the use f circumstantial evidence, the curts have established a burden-shifting framewrk t determine the emplyer's intent. a. Burden-Shifting This prcess begins with a plaintiff setting frth a prima facie case f discriminatin. If the plaintiff is successful in establishing a prima facie case, the burden shifts t the emplyer t articulate a (LNDR) fr the emplyment actin it tk. If the emplyer can articulate a LNDR, the burden shifts back t the plaintiff t prve that the emplyers articulated reasn is nt the true reasn and that discriminatin was the real reasn fr the emplyer's actin. b. Prima Facie Case The plaintiff's prima facie case changes depending n the type f emplyment actin being challenged. Hwever, there are sme elements that are cmmn t all cases that the plaintiff must meet: 1) The plaintiff is a member f a prtected class. This includes the plaintiff shwing that they are age 40 r lder fr an ADEA claim, r meeting ne f the definitins f disability fr an ADA claim. 2) The plaintiff is fr the psitin in questin. The "qualificatin" element is nt a high hurdle. The plaintiff des nt have t prve they were mst qualified, nly that the plaintiff met the minimum qualificatins fr the psitin. 3) The plaintiff was subjected t an adverse emplyment actin. The plaintiff must shw that were nt hired, r that they were demted, disciplined, etc. 4) Similarly situated individual nt in the plaintiff's prtected class was treated better. Example 26: Sue drives a frklift fr Acme Inc. Bill is a file clerk in a different department. They have different supervisrs. During a reductin in frce, Bill is laid ff and Sue is retained. May Bill base a claim f sex discriminatin n the fact that Sue is a wman and was nt laid ff?. Bill and Sue are nt similarly situated. It helps t understand the elements f the prima facie case by understanding its purpse: if the plaintiff has met the elements f the prima facie case, the mst fundamental reasns fr dismissing the plaintiff's case d nt apply, i.e., if the plaintiff is nt in a prtected class, is nt qualified, did nt suffer an adverse PA Emplyment Discriminatin 2016 Themis Bar Review, LLC 13

14 emplyment actin, r if everyne is treated the same regardless f the class they belng t, the plaintiff cannt raise a claim. By establishing a prima facie case, the plaintiff creates a that discriminatin has ccurred. If the emplyer des nt respnd with a LNDR, the plaintiff will prevail. 5) In rder t state a prima facie case f discriminatin in a case in which the plaintiff has been fired, what des the plaintiff need t shw? The plaintiff was in a prtected class The plaintiff was qualified fr the psitin The plaintiff was actually fired Emplyees nt in the same prtected class were retained 6) In rder t state a prima facie case in a case in which the plaintiff has nt been prmted, what des the plaintiff need t shw? The plaintiff was in a prtected class The plaintiff was qualified fr psitin he was seeking t be prmted int The plaintiff was nt prmted A persn nt in the same prtected class received the jb r the psitin remained pen and the emplyer cntinued t accept after the plaintiff was rejected c. Legitimate Nn-Discriminatry Reasn (LNDR) If the plaintiff can make ut a prima facie case, the burden shifts t the emplyer t articulate a LNDR fr the emplyment actin it tk. A LNDR may be any reasn fr the emplyment actin ther than the plaintiff's prtected class. If the emplyer prduces sme admissible evidence f its LNDR, the rebuttable presumptin created by the plaintiff's prima facie case. d. Pretext If the emplyer can articulate a LNDR, the burden shifts back t the plaintiff t prve by a prepnderance f the evidence that the emplyer's LNDR is nt the real reasn fr the emplyment actin and that discriminatin based n the plaintiff's prtected class is the real reasn. Example 27: Is a judge required t award the verdict t the plaintiff if the plaintiff prves that the emplyer's LNDR is untrue?. The plaintiff must cnvince the trier f fact that discriminatin was the real reasn Themis Bar Review, LLC PA Emplyment Discriminatin

15 CHAPTER 6: TYPES OF CLAIMS: MIXED-MOTIVE CASES; SYSTEMIC DISPARATE TREATMENT A. Mixed-mtive Cases At times, there is bth a legitimate and discriminatry reasn fr taking the actin challenged by the plaintiff. Tw tests, depending n the type f claim: Under the Age Discriminatin and Emplyment Act, and in retaliatin cases: plaintiff must prve that retaliatry r discriminatry actin is the f the emplyer's decisin. Fr all ther claims under Title VII: plaintiff's burden is t shw that the discriminatry reasn was a in the decisin. If the plaintiff meets nly the mtivating factr test, the plaintiff will be entitled t injunctive relief and attrney's fees, but nt mnetary damages. NOTE: it is nt yet settled as t which tests applies t ADA claims B. After-Acquired Evidence Exam Tip 1: If an exam questin raises the issue f a mixed-mtive case, first lk t what type f case it is. If it is an ADEA claim, r a retaliatin claim, discuss the "but fr" test. If it is any ther claim under Title VII, it will be imprtant t address the mtivating factr test and t nte that if the plaintiff can nly shw that the plaintiff's membership in a prtected class was a mtivating factr, then the plaintiff's remedies will be limited. NOTE: It is nt yet clear which test will be applied t ADA claims, s if exam questin raises a disability discriminatin claim, yu shuld nte that this is an unsettled questin f law. There are times when after an emplyment decisin adversely affecting the plaintiff is made, the emplyer will discver that the plaintiff had engaged in miscnduct that culd have therwise justified the emplyment decisin. This type f evidence is called evidence. Des nt affect the emplyer's ptential liability because the issue in an emplyment discriminatin case is the emplyer's mtivatin fr taking the actin challenged by the plaintiff. If the emplyer did nt knw f the evidence at the time f the decisin, the evidence is nt relevant t the emplyer's liability. Hwever, after-acquired evidence will limit the plaintiff's damages. Example 28: A plaintiff sues ABC C. fr sex discriminatin, alleging that her emplyment was terminated n April 20, 2007 because f her sex. During discvery, n January 10, 2008, ABC C. learns that the plaintiff defrauded ABC C. f $500,000. Hw des this discvery affect the case? PA Emplyment Discriminatin 2016 Themis Bar Review, LLC 15

16 ABC des nt autmatically win but the plaintiff will nly be able t get back pay fr April 20, 2007 January 10, Als, the fraud will prhibit the plaintiff frm being awarded reinstatement r frnt pay. C. Systemic Disparate Treatment Systemic disparate treatment refers t cases in which the plaintiff cntends that the emplyer intentinally discriminated against an entire prtected class. There are tw types f systemic disparate treatment cases: Frmal Discriminatry Plicies, and " " 1. Frmal Discriminatry Plicies Plicies that specifically address a prtected class in a way that intentinally adversely affects that class (i.e. mandatry retirement ages) The nly way an emplyer can defend a frmal plicy that discriminates is by establishing a BFOQ. T establish a BFOQ, the emplyer must shw the BFOQ is reasnably necessary t the essence f the emplyer's business, and that all, r substantially all, individuals in the affected class cannt perfrm the jb safely and efficiently, and that dealing with individuals, as ppsed t the grup, wuld be impractical. Nte 1: There can never be a BFOQ fr race. Example 29: Perfrming arts. Cmpany lking t fill the rle f a yung girl; hiring a 60 year ld male wuld be impractical. 2. Pattern and Practice Plaintiff alleges that discriminating against the plaintiff's prtected class is the f the cmpany. Because the emplyer des nt have a frmal written plicy, the plaintiff must prve her case thrugh the use f statistics and evidence. An emplyer can defend against such a case by disprving the plaintiff's statistics r by ffering a nn-discriminatry reasn t explain the statistics. Example 30: ABC C. runs a large department stre and emplys tw types f sales peple: thse that earn a cmmissin n sales they make and thse that make an hurly rate and n cmmissin. Cmmissined sales peple generally earn mre than nn-cmmissined. ABC C. has a nndiscriminatin plicy that states that it des nt discriminate n the basis f sex. In the 10 years ABC C. has run the department stre, it has never hired a wman as a cmmissined sales persn. The plaintiff, a wman, applied fr a cmmissined sales psitin and was rejected. What type f claim can the plaintiff bring? Themis Bar Review, LLC PA Emplyment Discriminatin

17 , because there is n written plicy that relies n sex. D. Disparate Impact These claims allege that a plicy r practice has a statistically significant adverse impact n a prtected class. Unlike facially discriminatry plicy cases and pattern and practice cases, the plaintiff des nt have t prve any t discriminate in rder t prevail n a disparate impact case. 1. Plaintiff's prima facie case In a disparate impact case, the plaintiff's prima facie case must: Identify a facially neutral plicy r practice Demnstrate that the plaintiff's prtected class has been adversely affected by the emplyer The EEOC has adpted the 4/5 rule fr triggering liability. Under the 4/5 rule, if the selectin rate f the prtected class is 4/5 r less the selectin rate f the grup with the highest selectin rate, the EEOC will cnclude that there is a disparate impact. Example 31: ABC C. has adpted a pre-emplyment test. Men wh take the test pass at a rate f 50%. What selectin rate wuld a female plaintiff have t shw fr wmen t meet the EEOC's test fr disparate impact? Less than. Curts will apply a test f tw standard deviatins. Demnstrate that there is a causal cnnectin between the plicy/practice and the adverse effect 2. Emplyer Defenses If the plaintiff establishes a prima facie case, the emplyer can defend by either disprving the statistics r prving that the practice is jb related and cnsistent with business necessity. The " " is nt a defense. 3. The Plaintiff's Final Burden If the emplyer rebuts the plaintiff's case by demnstrating that the practice is a business necessity, the burden shifts back t the plaintiff t shw that there is a less discriminatry alternative t the emplyer's practice. PA Emplyment Discriminatin 2016 Themis Bar Review, LLC 17

18 CHAPTER 7: TYPES OF CLAIMS: RELIGIOUS FAILURE TO ACCOMMODATE; HARASSMENT A. Religius Failure t Accmmdate Nt nly are emplyers prhibited frm discriminating n the basis f religin, Title VII requires emplyers t prvide reasnable accmmdatins fr their emplyees' religius beliefs. Plaintiff's Prima Facie Case: The plaintiff must hld a bna fide religius belief, bradly defined The plaintiff must infrm the emplyer abut the belief The belief must require the plaintiff t cnflict with sme jb requirement The emplyer must take adverse actin based n the cnflict If the plaintiff makes ut a prima facie case, the emplyer has a duty t explre whether a reasnable accmmdatin exists. An emplyer's duty t accmmdate religius beliefs is nt as brad as the duty t accmmdate under the ADA. Curts have held that any hardship that impses mre than a is undue in this cntext. Exceptin: are generally nt subject t religius accmmdatin claims. B. Harassment When the plaintiff brings a harassment claim, the plaintiff alleges that the emplyer has detrimentally altered the plaintiff's terms and cnditins f emplyment. There are tw types f harassment claims: "quid pr qu" and "hstile envirnment." Quid pr qu harassment claims are limited t sexual discriminatin. Any prtected class may bring a hstile envirnment claim. 1. Quid pr qu Quid pr qu literally means "this fr that." T bring a quid pr qu harassment claim, the plaintiff must prve that: A supervisr, manager r ther f the emplyer, Made a, Under threat f adverse emplyment actin, which was carried ut, and That the adverse emplyment actin resulted frm refusing the prpsitin. Example 32: The plaintiff's supervisr tells the plaintiff that she will nt receive a prmtin unless she sleeps with him. The plaintiff refuses, but is prmted anyway. Can the plaintiff state a claim fr quid pr qu sexual harassment?. The threat f adverse emplyment actin was nt carried ut. This must be a hstile envirnment claim Themis Bar Review, LLC PA Emplyment Discriminatin

19 2. Hstile Envirnment Hstile envirnment claims may be brught when there has been n tangible adverse emplyment actin. Rather, the plaintiff is expsed t unwelcme r ffensive cnduct because f the plaintiff's membership in a prtected class. T be actinable, such cnduct must be " r such that it alters the plaintiff's terms and cnditins f emplyment." Offensive cnduct can include a wide array f behavir ranging frm jkes, name calling, and pictures t threats and assaults. Cncerning sexual harassment, actinable cnduct may range frm unwelcme advances, requests fr sexual favrs, and jking t sexual assault. The persn bringing the claim must have been actually ffended themselves by the cnduct. Nte 2: Remember, sexual rientatin is nt a prtected class under federal law. Hwever, harassment based n steretyping Jane is t manly r Bb is nt mach may vilate Title VII. The "severe r pervasive" test is subject t the standard. Cnduct must rise t the level f intimidating, hstile, r abusive, but this test will be met by the plaintiff if the cnduct was sufficient t unreasnably interfere with the plaintiff's wrk perfrmance. 3. Emplyer Liability T determine if an emplyer is liable fr harassment, it is necessary t determine whether the harassing cnduct was quid pr qu sexual harassment being engaged in by a supervisr. If s, the emplyer will be liable. Similarly, if a hstile wrk envirnment is created by a supervisr, and the harassment results in a tangible emplyment actin, the emplyer will be liable. 4. Affirmative Defense If the plaintiff alleges a hstile wrk envirnment that has nt resulted in a tangible adverse emplyment actin, an emplyer may avid liability by prving that it tk reasnable measures t prevent and crrect harassing behavir and the plaintiff unreasnably failed t utilize thse measures. Remember, taking these measures is nt a defense t a claim in which there was a tangible emplyment actin, such as a demtin r a discharge. C. Retaliatin Title VII, the ADA, and the ADEA prtect emplyees frm retaliatin if they engage in prtected activity. Prtected activity is defined as either: (i) ppsing discriminatry practices; r (ii) r in any ther way participating in an investigatin r prceeding under ne f the statutes. These are called the clause and the participatin clause, respectively. The same burden-shifting framewrk that applies disparate treatment cases applies t retaliatin cases. PA Emplyment Discriminatin 2016 Themis Bar Review, LLC 19

20 1. Prima Facie Case The plaintiff must shw: They engaged in prtected activity The emplyer tk adverse actin against the plaintiff There is a causal cnnectin between the activity and the adverse actin taken Nte 3: A current emplyer is prhibited frm taking adverse actin against an emplyee because the emplyee charged a prir emplyer with discriminatin. 2. Emplyer Respnse If the plaintiff meets the burden f establishing a prima facie case, the burden shifts t the emplyer t articulate a LNDR fr the adverse actin. 3. Plaintiff's Ultimate Burden T prve that the emplyer's LNDR is nt the real reasn fr the adverse actin and that the true reasn is retaliatin fr undertaking prtected activity. CHAPTER 8: PROCESS FOR BRINGING A CLAIM; REMEDIES A. Filing a Charge An emplyee wh wishes t bring a claim f discriminatin is required t file a charge f discriminatin with either the EEOC r the Pennsylvania (PHRC). In sme municipalities, there may be a lcal agency that the charge may als be filed with. In Pennsylvania, an emplyee has days t file a charge with the EEOC and days t file with the PHRC. This time perid runs frm the date f the adverse actin, r in harassment cases, frm the date f the last discriminatry act. An emplyee may rely n equitable theries such as waiver, estppel, and equitable tlling t expand the filing perid. Wages and Cmpensatin Claims: Lilly Ledbetter Fair Pay Act f 2009 under this new law, Cngress made clear that if discriminatin infected any cmpensatin decisin, every subsequent applicatin f that decisin cnstitutes a new act f discriminatin. Example 33: Sue and Bb wrk fr Acme Inc. In 1991, Sue received a salary increase that was 50% f Bb's increase. Sue subsequently learns that the reasn why she received a lesser increase was because she is a wman. Sue's pay has never caught up. If Sue files a charge f discriminatin cncerning her pay in December f 2009, is that charge timely?. Under the Lily Ledbetter Fair Pay Act, every single payment since 1991 has been infected by the discriminatry decisin and, under the Ledbetter Act, she has 300 days frm ANY infected payment t file a claim Themis Bar Review, LLC PA Emplyment Discriminatin

21 B. Investigatin and Cnciliatin After a charge is filed, the EEOC will cnduct an investigatin and ffer t mediate the case. At the end f the investigatin, if the EEOC cncludes that there is insufficient evidence t establish the merit f the charge, it will dismiss the charge and issue a right t sue letter. The emplyee has days frm receipt f the "right t sue" letter t cmmence an actin in federal district curt. If the EEOC cncludes that the charge has merit, it will issue a finding f "reasnable cause" and attempt t cnciliate the case. If cnciliatin fails, the EEOC will either sue the emplyer itself, r issue a "right t sue" letter. C. REMEDIES Title VII, the ADA, and the ADEA all prvide fr bth legal and equitable remedies. Hwever, the specific remedies available under each statute differ. 1. Title VII and ADA Legal Remedies Cmpensatry damages, capped with punitive damages. The cmbined cap depends n the size f the emplyer N liquidated damages may be awarded 2. ADEA Legal Remedies N damages r damages Liquidated damages may be awarded Attrney's fees may be awarded 3. Equitable Remedies The equitable remedies permitted under all three statutes are the same. Prevailing plaintiffs may be awarded: Instatement (with retractive senirity) Back pay; and Frnt pay (all ffset by a duty t mitigate) SUMMARY RECOMMENDATIONS 1. Determine and list prtected classes. 2. Address ne prtected class at a time. 3. What will the prima facie case lk like? PA Emplyment Discriminatin 2016 Themis Bar Review, LLC 21

22 4. Clearly articulate what burden shifts t the defendant. 5. Clearly identify what is left fr the plaintiff t prve. 6. Clearly identify whether there are any affirmative defenses available t the emplyer. 7. Discuss what types f damages culd be available t the plaintiff. 8. If there is mre than ne prtected class, nly then mve n t the discussin f the next ptential claim. [END OF HANDOUT] Themis Bar Review, LLC PA Emplyment Discriminatin