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Employment Discrimination
Rutgers University, Newark School of Law
West, Mark

I. Introduction and Background. 2
A. Introduction and Basic Definitions. 2
B. Statutes. 2
1. “The Big Three”. 2
2. Title VII Overview.. 3
3. ADEA Overview.. 3
4. ADA Overview.. 4
II. Individual Disparate Treatment (IDT)5
A. Introduction and Definitions. 5
B. Prima Facie Case and Defenses. 5
C. IDT Cases from Textbook. 6
D. Mixed Motive Actions. 7
E. Mixed Motive Cases from Textbook. 7
III. Systemic Disparate Treatment (SDT)9
A. Introduction and Definitions. 9
B. Prima Facie Case and Defenses. 9
C. SDT Cases from Textbook. 10
D. BFOQs and Affirmative Action. 10
E. BFOQs and Affirmative Action Cases from Textbook. 11
IV. Disparate Impact Discrimination (DID)12
A. Introduction and Definitions. 12
B. Prima Facie Case and Defenses. 13
C. Section 703(h) Defenses in Deatil13
D. DID Cases from Textbook. 14
V. Special Problems in Applying Title VII16
A. Number of Employees. 16
B. Pregnancy Discrimination. 16
VI. Hostile Work Environment (HWE)17
A. Introduction and Definitions. 17
B. Prima Facie Case and Defenses. 17
C. Special Issues in HWE. 18
1. Vicarious Liability. 18
2.   HWE and the First Amendment19
3. Grooming and Dress Codes. 19
D. HWE Cases from Textbook. 19
VII. Religion and National Origin Discrimination. 21
A. Religion Discrimination. 21
1. Introduction and Definitions. 21
2. Prima Facie Case and Defenses. 21
3. Religion Discrimination Cases from Textbook. 21
B. National Original Discrimination. 22
1. Introduction and Definitions. 22
2. National Origin Discrimination Cases from Textbook. 22
VIII. Retaliation Claims. 23
A. Introduction and Definitions. 23
B. Prima Facie Case and Analysis. 23
C. Retaliation Claims Cases From Textbook. 23
IX. Age Discrimination. 25
A. Introduction and Definitions. 25
B. Prima Facie Case and Defenses. 25
C. ADEA Cases from Textbook. 25
X. Disability Discrimination. 27
A. Introduction and Definitions. 27
B. Elements of Disability, Qualified Individuals, Essential Functions, and Undue Hardship. 27
C. Disability Discrimination Cases from Textbook. 28
XI. Remedies. 30
I. Introduction and Background


A. Introduction and Basic Definitions

Employment-at-will – Does not exist. Only theoretically exists until someone challenges it and claims that an employment decision was made because they were in a protected class.
Title VII of the Civil Rights Act of 1964 – The main anti-discrimination statute. Applies to companies with more than 15 employees.
Pretext – A false explanation put forward to cover up unlawful discrimination.
Hostile Work Environment – Where the terms and condition of employment have been altered in a non-tangible way because of membership in a protected class.
Hostile Work Environment Law is the fastest growing area of Employment Discrimination Law.
Bonafide Occupational Qualification (BFOQ) – Exceptions where discrimination is permissible. Allows only sex, national origin, religion, or age qualifications that affect an employee’s ability to do the job. THERE IS NO BFOQ FOR RACE OR COLOR. A BFOQ must be reasonably related to the job.

5 Different Ways That an Employer Can Discriminate:
1
Individual Disparate Treatment
Where a qualified employee is treated different as a result of being in a protected class.
2
Systemic Disparate Treatment
Where an employer has a policy or custom designed to discriminate against a group of people in a protected class.
3
Disparate Impact Discrimination
Where intent is not required. Involves employment practices that are facially neutral in their treatment of different groups, but in fact fall more harshly on one group than another and cannot be justified

, or to otherwise discriminate in regards to compensation, terms, conditions, or privileges of employment.
2
2000e-2(h)
The seniority system remains protected
3
2000e-2(k)
You cannot have quotas
4
2000e-2(m)
An unlawful practice exists when race, color, religion, sex, or national origin is a motivating factor.
5
2000e-3(a)
You cannot retaliate against someone because they exercised a right under Title VII. Today, there are more cases that come out of this section than anywhere else.
6
2000e-4
Creates the EEOC
7
2000e-5(e) and (f)
You must go through the EEOC before you go to court. However, with the advent of state anti-discrimination statutes, you do not need to go through the EEOC.
8
2000e-5(k)
A fee shifting statute where the plaintiff has the opportunity to shift fees. It is almost impossible for the employer to shift fees.
9
2000e-7
State actions are not intruded upon by Title VII.

3. ADEA Overview

Coverage Number – 20 Employees or more.
In similar language (but not identical) to Title VII, the ADEA proscribes age discrimination against individuals age 40 and over.
You cannot claim age discrimination on the basis of being younger. Cline
Amendments to ADEA:
1974 – Coverage was extended to public employers.
1978 – Amendments expressly prohibited mandatory retirement and extended the protected age class from age 65 to age 70.