I. Introduction Material
a. The Matter of Underemployment
b. At-Will and Wrongful Discharge: Absent a contract employment is at will, means that ee and employer can end a relationship as long doesn’t violate a statue.
i. Howard v. Wolff Broadcasting Corp.
1. Woman sues Radio Station because she claims she was fired because of being a woman and also her employment was not “At-Will”
2. Alabama holds only at-will exception is “an express of specific contract for lifetime employment or employment for a specified duration”
3. Case also refuses to carve out a public policy exception to that doctrine.
ii. Public policy exception Martin Marietta v. Lorenz
a. Prima Facie case created for “public policy exception”
b. There must be an illegal act.
c. There must be a public duty of the employee to report illegal act
d. Carrying out those orders must violate a statute.
e. Ee must reasonably believe action is illegal
II. Legislation and Statutes
a. The Core Statutes
i. Title VII: 15 or more employees in each working day. (Walter v. Enterprises Inc.): Scalia wrote it’s a payroll method. If you paid them and there are 15 of them in a 20 calendar week than you are covered. Why exclude small businesses? Government won’t impose cost of litigating on small employees. What entities are excluded? federal government and military
1. Prohibits discrimination by employers,labor organizations and employment agencies.
a. In all aspects of employment relationship: hire, discharge, compensation and any other “terms and conditions of the employment”.
b. Includes “race, color, religion,sex and national origin”
i. Sex has been interpreted by the courts whether or not pregnancy (Yes, see 701 (k) amendment), marital status (no)or sexual practices (NO) are ‘because of sex’.
ii. In terms of religion, the 1972 amendments expressly defined religion to include “religious observance and practice as well as belief”. This discrimination is illegal unless the employer demonstrates he is unable to accommodate reasonably an employer’s religious observance or practice without undue hardship. SEE 701 (j).
c. Four categories of discrimination
i. Facial distinctions drawn expressly.
ii. Disparate treatment motivated by considerations
iii. Use of neutral appearing factors that perpetuate facial segregation previously practiced by this defendant
iv. Neutral criteria, without business justification that have adverse impact on a class.
d. Submodels of proof
i. Direct evidence of illegal motive
ii. Dissimilar treatment of similarly situated persons (individual disparate treatment)
iii. Systemic Discrimination established through the use of anecdotal evidence and statistical models (group disparate treatment).
e. Legislative History
i. Pregnancy Amendments
ii. Civil Rights Act of 1991
1. Method of analysis of cases alleging disparate impact.
2. Mixed Motive analysis
3. Prohibition of “race norming” devises
4. Ability to recover was limited.
5. Expansion of time period to challenge to bona fides of seniority systems.
6. Others listed on Page 26.
ii. ADA
1. More detailed in defining the concepts of disability and discrimination than Rehabilitation act.
2. “qualified individual with a disability”
3. “discrimination” is defined under 102 (b)
4. “disability” is broadly defined identically to “handicap” under the Rehab. Act.
iii. ADEA: must have 20 ees or more.
1. Only protects ages 40-65.
2. EEOC has taken the position that favoring older over younger is in scope of act.
3. One major difference with Title VII is the ability to observe the terms of bona fide benefit plans.
4. Legislative History (30).
iv. Equal Pay Act
1. Relatively narrow statute. Requires “equal work” for “equal pay” unless the pay is justified by seniority, merit or any other factor.
2. Different model of proof than other statutes
a. Prima Facie showing requires “equal work” within an “establishment” and paid at unequal rates.
b. The employer then must prove that the pay difference is attributable to another factor.
v. Fair Labor Standards Act
1. Establishes Minimum wages, time and a half for overtime and regulates child labor.
2. Equal Pay Act is an amendment to the statute and this statute does not require wage fairness or prohibit arbitrary wage distinctions.
3. Does not regular the right of an employer to hire and fire unless such action is taken in retaliation for invoking protections of this act.
vi. National Labor Relations Act
1. Protects workers’ rights to organize and “engage in concerted acticity for mutual aid and protection”
2. Requires employers to bargain with certified representatives.
vii. 1981
1. Discrimination Motivated by race.
b. Range and Scope of Statutes
i. “Employer” Coverage
1. The employer must be a “person” in an “industry affecting commerce”
2. There must be 15 (Title VII) or 20 (ADEA) employers.
a. They must work “each working day” for at least “twenty calendar weeks” within the year the violation is alleged or within the previous year.
b. Weeks need not be consecutive.
c. Jointly owned businesses can be counted together under the four requirements on Page 51.
3. Exclusions from “employer”
a. Membership Clubs 701 (b)
i. Must be tax exempt and not a union.
ii. ADEA has no expre
esn’t have anti discriminatio agency, then you have 180 from act of discrimination
if in a state that there is a state counterpart then you have 300 days
mostly have dual filing: file with EOC and state division. Most eoc administers them. Generally no difference
NJ: remediues are greater and tend not to have federal discrimination claims.
ada, title vii, equal pay act- can go straight to court, immigration reform act- exec order 116 – affirmative action order imposes obligations to federal contractors and subcontractor to determine order,
individuals cant file own claim.. referred federal contract informer.
Section 1981: set discrimination claim under.
Class claims do not require intent,
III. EEOC and Discrimination Principles and Proof (Disparate Treatment)
a. EEOC Enforcement and Interpretive Functions
i. Interpretive Function- EEOC has limited Rule-Making Authority
ii. issue substantive rules regarding interpretation
iii. don’t have rule making process or binding authority and will defer to a large extent with the eeoc
1. Exception is a limited power under the ADEA to issue rules that will establish reasonable exemptions to and from any or all provisions of the Act as it may find necessary and proper and in the public interest.
2. Guidelines issued are entitled to “Great Deference”
iv. Procedural Issues
1. The EEOC is a gateway or intake monitor. Undertakes an informal investigation and determines “reasonable cause” which does not preclude a suit or De Novo review.
2. In jurisdictions that do not have their own EEO laws, a charge must be filed within 180 days.
3. In J’s where a law exists, a charge must be filed with both federal and locals. Must be filed within 300 days. Or if there is not earlier filing, then 240 days.
4. The ADEA has a SOL of two years running from the date of the act.
5. If EEOC determines no reasonable cause, a suit must be filed within 90 days.
6. In FEDERAL agencies, the agency reviews first (See Page 77).
Under the EQUAL PAY ACT, EEOC may file suit but has no mandatory obligation. Must be filed within two years of the violation and three if the violation is
