Employment Discrimination Outline

Employment Discrimination

1. Title VII: What does the statute prohibit or require (bases of discrimination and issues)?

   1. Discrimination based on: race, color, sex, national origin, religion, objection to unlawful practices or participation in enforcement efforts (retaliation)

   2. Employment actions covered: hiring, promotion, compensation, discharge, terms & conditions, referral to employment, classification of membership, admission to apprenticeship training programs, employment advertising

   3. Who can be sued? Private employers (15+ employees), state & local governments, unions (15+), employment agencies, joint apprenticeship committees, federal govt. (special rules), congress (special rules)

      1. “Employer” defined as “a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person” § 701(b)

      2. Employer/Independent Contractor: Lerohl v. Friends of Minnesota: found freedom of choice factor controlling. In that case the court found that IC musicians retained the discretion to perform elsewhere and to accept or reject playing a particular concert series. Hiring party withheld no income taxes and provided no employee benefits.

         1. Number of factors considered including duration of relationship between the parties; whether hiring party has the right to assign additional project to a third party; the method of payment: employee benefits; and tax treatment of third party

         2. In questions about law firm partners, the focus has generally been on the question of whether the partners in question have sufficient power to control the firm or are functionally more like associates. EEOC v. Sidley Austin (7th 2002)

         3. Interns and volunteers: courts generally require compensation to be considered an employee: Pg 321

      3. Integrated enterprise doctrine: Sometimes 2 or more distinct legal entities are viewed as being in reality a single employer thus allowing all the employees to be used to aggregate the required number of employees: Pg 321

      4. Joint employment: an employees of one entity may hold another entity liable; the premise is not that 2 entities are one but that they co-determine the essential terms and conditions of employment: Pg 321

      5. Government employment: Title 7, ADEA, and ADA generally reach state and local governmental employees. ADA does not itself reach federal, but there is similar protection under the Rehabilitation Act.

      6. Exemptions: Title 7 excludes “bona fide private membership club” and people needing a national security clearance. It also excludes veteran preference laws.

      7. No Jurisdictional Element: 15 plus employees must be “each working day in each of twenty or more calendar weeks in the current or preceding year). Not a jurisdictional element.

   4. Extraterritorial Effect: generally US citizens abroad are protected if they work for US owned or controlled employers, but not if compliance with statutes would require employer to violate law of foreign country.

   5. Exemptions: “Bona fide private membership club,” and Indian tribes are exempt.

      1. Ministerial exception: Hosanna-Tabor

      2. First Amendment right to association: Boy Scouts v. Dale: First Amendment insulated boy scouts from New Jersey’s ban on discrimination on the basis of sexual orientation. Orgs must have an expressive discriminatory purpose at odds with statute and only if complying would affect in a significant way their ability to advocate public or private viewpoints, are they then covered with protection.

   6. Theories available: Individual & Systemic Disparate Impact, HWE, QPQ

2. ADEA (Age Discrimination in Employment Act)

   1. Who is protected? Individuals who are at least 40 years of age §12(a)

   2. What does this statute prohibit/require? Tracks T7’s language but makes it unlawful to discriminate “because of such individual’s age”

      1. unlawful to reduce wages to comply with ADEA

      2. lawful: to discriminate when age is a BFOQ, or there’s a bona fide sonority system

   3. Because of:

      1. Hazen Paper v. Biggins (U.S. 1993): There is no disparate treatment claims under the ADEA when the factor motivating the employer is some feature other than the employee’s age.

         1. In a disparate treatment case, liability depends on whether the protected trait actually motivated the employer’s decision. The employer here terminated the P because his pension was about to vest. Because age and years of service are analytically distinct, an employer can take account of one while ignoring the other.

      2. P must prove that his age must have played a role in the employer’s decisionmaking process and had a determinative influence on the outcome: Reeves v. Sanderson Plumbing

      3. In all ADEA cases, the P must carry the burden of persuasion and production that age was a but-for cause of the adverse employment action. Gross v. FBL (2009) USE PRICE WATERHOUSE DISSENT

   4. O’Connor v. Consolidated Coin (US 1996): the discrimination prohibited by ADEA is discrimination because of an individual’s age, though the prohibition is limited to individuals over 40. The language doesn’t ban discrimination because they are aged 40 or over; it bans discrimination against employees because of their age, but limits the protected class to those over 40. The fact that one person in the protected class has lost out to another person in the protected class is thus irrelevant, so long as he has lost out because of his age. Because the ADEA prohibits discrimination on the basis of age and not class membership, the fact that a replacement is substantially younger than P is a far more reliable indicator of age discrimination than is the fact that the P was replaced by someone outside the protected class

   5. What theories of liability are available?

      1. Systemic Disparate Treatment: Formal Polices only

      2. Individual Disparate Treatment: use McDonnell Douglas framework

   6. Whose can be sued? Employers, employment agency, or labor agency, state and federal government, or any agent thereof with ...

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