I.

Sources of Law
A. Title VII
1. 703(a) – unlawful employment practice for an employer to fail/refuse to hire
because of race, color, religion, sex, or national origin OR to deprive any
individual of employment opportunities because of race, color, religion, sex, or
national origin
2. 703(h) – you can use any professionally developed tests no designed, intended,
or used to discriminate because of race.
a. Test must measure the person for the job and not the person in the
abstract and must be validated (Criterion related, construct, content)
3. 703(k) – unlawful employment practice established if employment practice isn’t
business necessity and job related OR if employer refuses to adopt alternative
employment practice
a. Statutory basis for disparate impact.
4. 701(k) - Pregnancy and Discrimination Act
a. Because of sex or on the basis of sex includes pregnancy, childbirth, or
related conditions
b. BFOQ defense applies
5. Requirements
a. Employee
b. Privilege or conditions of employemnt interfered with because of
discrimination
c. 15+ employees
6. Ministerial Exception
a. Precludes application of Title VII
b. Applies to employee who leads a religious organization, conducts
worship services, or important ceremonies, or serves as a messenger or
teacher of its faith
c. Interferes with the internal governance of the church, deprives the
church of control over the selection of those who will personify its
beliefs
B. Age Discrimination in Employment Act
1. forbids employment discrimination against anyone over 40
C. Section 1981
1. prohibits discrimination on the basis of race, color, and ethnicity
2. questions of employment do not arise – reaches all contract relations
3. no exhaustion requirement
D. ADA
1. Actual disability
2. Record of
3. Regarded as
II. Types of Claims
A. Disparate Treatment – employer treats people less favorably
 1. Types
a. Individual – employment decision affecting on person
b. Systemic – formal policy of discrimination or pattern of employment
decision
i. 703(a)(1) – focus on the individual
ii. BFOQ defenses - relate to essence or central mission to the
employer’s business. Essence of business test
 privacy concerns (female nurse), authenticity (Chinese
restaurant), skill/strength (football)
iii. Class actions – overcome commonality
 Employer using employment tests
 Policy of discrimination
 Practice of discrimination in absence of an express
policy
iv. Requires 2-3 standard deviations
2. Focus on intent
3. Mixed Motive cases
a. Protected element was a factor in the employment decision
b. No form of compensatory relief – only injunctive relief, attorneys’ fees,
and costs
c. Only for Title VII – not in ADEA of Section 1981
d. Direct evidence not required
B. Disparate Impact – facially neutral practice has disproportionate effects
1. Always systemic
2. Focus on what the impact is
3. No jury trial – only get equitable relief
a. Exception – jury trials under ADEA
4. Use this to challenge subjective/discretionary employment practices
5. Approved validation strategies
a. Criterion – collect data – develop correlation between tasks and what
makes employee successful
b. Construct-related – abstract – teamwork, innovation, etc.
c. *Content-related – easiest. Measure something directly - WPM
6. 80% test
7. Defenses
a. Rebut the showing of impact
b. Prove the practice is Job related and consistent with business necessity
under 703(k)
c. Practice is a professionally developed test
i. Affirmative defense
d. Bona fide senority system
i. Affirmative defense
e. Bona fide merit and piecework system
i. Affirmative defense
C. Disparate Treatment v Disparate Impact
1. Strong basis in evidence test – if employer can produce a strong basis in
evidence that, had it not taken the action it would be liable under the other
theory, the employer can avoid liability
a. Violation of one in the name of compliance in the other
b. Fear of litigation isn’t enough – must also lack a defense
D. Sexual Orientation Claims
1. Sexual stereotyping – Price Waterhouse
2. Sex includes sexual orientation – but-for sex, you wouldn’t treat differently
3. Sex plus discrimiantion – treating different because woman and gay
E. Pregnancy
1. Must treat pregnant workers the same as other workers in the ability/inability
to work
2. Follows McDonnell Douglas framework
3. What is the burden? Is the burden significant? What is the reason for the
employer placing the burden on the pregnant worker?
a. No suffiently strong reason – discrimination
F. Sexual Harassment
1. Quid pro quo
a. No defenses
2. Hostile work environment (Harris)
a. Severe or pervasive
i. Act or pattern
b. Unwelcome (subjective)
i. Victim must subjectively perceive conduct as abusive
c. Offensive and abusive (objective – reasonable person)
d. Vicarious liability
i. No individual liability under Title VII
ii. Employer defends by saying:
 It took reasonable care to prevent/correct and
 Employee acted unreasonably
e. Because of sex
 Economic Non-economic
(Hostile Work Environment)
Supervisor Strict liability Strict liability, BUT defense if:
1. Employer took reasonable care to prevent and
correct any sexually harassing behavior
a. Preventative: sexual harassment policy with
by-pass procedure for person other than
direct supervisor to report to
2. Employee unreasonably failed to take advantage
of preventative or corrective opportunities or
avoid harm otherwise
a. Corrective - don't file a complaint
b. Avoid harm - way to reasonably avoid the
person
Co-worker XXXXXXXX Negligence - knew or should have known, but took no
action

G. Religious Accommodation – Title VII

1. Ministerial exception
2. Plaintiff
a. There is a reasonable accommodation
b. Employee has to put employer on notice of claim (Reed)
3. Defendant
a. There would be a deminimum undue burden
b. BFOQ
H. Retaliation
1. Opposition
a. Must demonstrate good faith belief that conduct s unlawful
2. Participation
a. Doesn’t matter if charged conduct is unlawful or not
3. Exceptions
a. Managerial exception (Brush v Sears)
I. ADA
1. Duty of reasonable accommodation
a. Higher standard than religion
b. Accommodation must be reasonable, not cause a direct threat, and not
impose an undue burden
III. Administration and Procedures
A. Must exhaust administrative remedies first
1. Can demand right to sue letter after 180 days
2. Must file suit within 90 days of right-to-sue letter
 3. Must exhaust administrative remedies for each separate claim before private
suit
a. Exception – show that claim grew out of or was part of original claim
B. Statute of Limitations
1. Title VII - 180 days
a. Exceptions:
i. State with an anti-discrimination agency: 300 days
ii. Contaminated environment: 300 days of any act constituting
the same course of harassment
 Hostile work environment
 Ledbetter Fair Pay Act
2. ADEA
a. 2 years, 3 years if willful
IV. Remedies
A. Equitable
1. Back pay – lost wages, overtime, raises, bonuses, vacation
a. General rule: you get back pay
i. Make victim whole
ii. Encourage plaintiffs to bring suit
b. Failure to act in bad faith isn’t a reason for denying back pay
c. Limits
i. Only goes 2 years prior to filing charge
ii. Reduced by mitigation
2. Reinstatement or front pay
a. Front pay not subject to caps
b. Front pay is usually 2-3 years
3. Retroactive seniority
a. Presumption of retroactive seniority
4. Injunctive relief
5. Attorney fees
6. Lost earning capacity
B. Compensatory damages
1. Mental distress
2. Subject to caps
C. Punitive
1. Requirements
a. Malice or reckless indifference – intent to violate statute
b. Agency – has to be a higher level of authority
2. No punitive damages for ADEA
V. Frameworks
A. McDonnell Douglas
1. Plaintiff – burden of proof
a. Member of a protected class
b. Qualified
 c. Adverse employment action
i. Failure to hire, failure to promote, firing, etc.
ii. Material difference has to be connected to age, sex, etc.
d. Inference of unlawful discrimination
i. Usually a comparator
2. Defendant – burden of production
a. Articulate a legitimate, nondiscriminatory reason
3. Plaintiff – lower than burden of proof
a. Pretext
i. Don’t need a slam dunk comparable or a comparable at all
b. Real reason was discrimination
i. But-for causation
B. Price Waterhouse (Mixed Motive) – codified in 703(m)
1. Plaintiff – burden of proof
a. Unlawful motivating factor – more than 50%
2. Defendant – burden of proof
a. Same decision test – defendant was motivated by an illegitimate factor,
but they would have made the same decision anyways
C. Manhart (Systemic Direct)
1. Plaintiff
a. Direct evidence of discrimination
2. Defendant
a. Bona fide occupational qualification
D. Teamsters (Systemic Disparate Treatment Inferential – pattern and practice)
1. Plaintiff – burden of proof
a. Statistics showing impact of policy – 2-3 standard deviations
b. Anecdotes – testimony
2. Defendant
a. Defenses
 Pre-Act discrimination v Post-Act Discrimination
 Same Decision
 BFOQ
 Rebut the inference of discirminatory intent
 Interest and availability (Sears)
E. Griggs (disparate impact)
1. Plaintiff – burden of proof
a. Selection device has disparate impact on protected group
i. Requires a specific employment practice which has an adverse
impact (80% test) and employer uses the practice
 Example: hiring rate minority – 4.8%. hiring rate non-
minority – 9.7%. 4.8/9.7 = 49.5 – disparate impact
2. Defendant
a. Title VII - burden of production
i. Rebut the showing of impact
 ii. Prove the practice is Job related and consistent with business
necessity under 703(k)
iii. Practice is a professionally developed test
 Affirmative defense
iv. Bona fide senority system
 Affirmative defense
v. Bona fide merit and piecework system
 Affirmative defense
b. ADEA – burden of persuasion, but easier to show than business
necessity
i. Reasonable factor other than age
3. Plaintiff
a. Pretext – alternative employment practice available
F. Pregnancy Discrimination
1. Plaintiff
a. Member of a protected class
b. Qualified
c. Adverse employment action
d. Inference of discirmination
2. Defendant
a. Legitimate, nondiscriminatory reason
3. Plaintiff
a. Employer’s policies imposed burden and reason for that burden aren’t
sufficiently strong to justify burden
G. Retaliation
1. Plaintiff
a. Engaged in protected activity
i. Opposition – good faith belief there was an unlawful act
ii. Participation – you engaged in process
b. Suffered materially adverse employment action
i. All you have to show is material change in terms and conditions
of employment
c. Causal link between protected activity and employment action
i. But-for causation - no mixed motive cases
2. Defendant – burden of production
a. Legitimate, nondiscriminatory reason
3. Plaintiff
a. Pretext
b. Real reason was discrimination
H. ADA
1. Plaintiff
a. Individual with a disability
i. Impairment that substantially limits one or more major life
activities
 b. Qualified to perfrom essential functions of the job with or without
reasonable accommodation
c. Adverse employment action
2. Defendant – burden of persuasion
a. Not qualified
b. Unreasonable accommodation
c. Undue hardship
d. Direct threat
e. Employee didn’t advise of disability