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Employment Discrimination
Rutgers University, Newark School of Law
DiChiara, Michael R.

I. INTRODUCTION
 
A. CONSTITUTIONAL LAW
 
The Brown v. Board of Education decision laid the foundation for modern civil rights law, including emp. discrimination.
 
B. THE CIVIL RIGHTS ACT OF 1964
 
The EEOC is the administrative agency charged w/ enforcing Title 7.
 
Title VII:
§ Established in: Civil Rights Act of 1964
§ Prohibits discrimination against: race, religion, sex/gender, color, national origin
§ Where did the protections for the given classes come from: Primary Source: The Constitution
§ Primary focus of Title VII: To rid the workplace of racial discrimination
 
Where did the court get the basis of Title VII for:
§ Race (5th Amendment, 14th Amendment, 13th Amendment)
§ National origin (treated the same as tace in Con. decisions under the 5th and 14th Amend.
§ Religion (1st Amendment)
§ Color (14th, 5th Amendment)
§ Gender (No constitutional basis; it would suggested by a Southern congressman to                               defeat the bill [he thought it would be considered ridiculous])
Note: Although there’s no federal statute that protects against sexual orientation discrimination, there are more state laws that provide protection against sexual orientation discrimination
 
C. AGE & DISABILITY
 
Americans with Disability Act of 1990 (ADA)
Age and Discrimination in Employment Act 1967  (ADEA)
§Updated in 2009 with tougher standards   
§ Rehabilitation Act (applies only to government agencies and contract recipients)
 
D. JUDICICIAL INTERPRETATION & LEGISLATIVE AMENDEMENT
 
Unlike Con. Decisions, judicial decisions interpreting the laws against emp. discrimination can be overridden by Congress.
 
E. DISCRIMINATION AND EQUALITY
 
1. The Historical Perspective: Equality as Colorblindness
 
2. The Economic Perspective: Equality as Merit
            3. The Remedial Perspective & Remedial Equality
§ Federal Judges are more likely to grant summary judgment for defendants, this is less likely to happen in State court
§ State courts are more likely to send employment discriminations to a jury and are therefore more plaintiff friendly
            4. General Theories of Equality
 
F. STATUTE OF LIMITATIONS
 
Statutes of Limitation:
            – In states where there’s an administrative agency, you have 300 days to file your charge
                        – This agency would be a separate body that investigates claims of discrimination
            – In states w/o an agency, you have 180 days to file w/the EEOC
            – In states w/an administrative agency AND the EEOC, it’s called a dual agent state and you           have an option to file w/either
 
– In order to go into federal court, you must have a right to sue letter
            – The SOL for the right to sue letter is 90 days
 
§ The SOL triggers from the date of the last discriminatory act
 
Federal Express Corp. v. Holowecki
 
– The Problem: The person filed a claim w/the EEOC. They filled out a questionnaire and                                                 submitted a 6-pg affidavit; what was significant abt the affidavit.
 
– The Ct.’s Response to the Problem: Submitting the questionnaire and affidavit was a charge b/c                          you can infer that the Petitioner wanted the EEOC to take action from the material.
 
– Holding: Supreme Court’s Definition of a Charge is a request for the EEOC to take action
 
– Note: When submitting a questionnaire, you would also want to submit an attachment, such as an                      affidavit.
 
3 Different Levels of Deference:
            1. Chevron Deference
                        – Chevron deference applies to agency actions which carry out an express or implied                                      delegation by Congress to the agency to interpret an ambiguous statute through                               rules carrying force of law. This is binding unless it is unreasonable.
            2. Auer Deference
                        – Auer deference applies to agency interpretations of its own ambiguous regulations.
            3. Skidmore Deference
                        – Under Skidmore, agency interpretations, are not binding, but may receive varying                             amounts of weight according to their power to persuade.
– Charges by an administrative ag

 
 
 
 
II. INDIV CLAIMS OF INTENTIONAL DISCRIMINATION
 
A. INTRODUCTION
 
Indiv. cases of emp disc. are cases where an individual plaintiff claims that an adverse personal decision was based on a prohibited characteristic, of which race (or another protected class) is the paradigm.
The action is intentional only insofar as it involves an intent to make a decision with respect to employment
 
B. STATUTORY DEFINITIONS OF DISCRIMINATION
 
Title 7 doesn’t define intentional discrimination.
 
General equitable remedies, such as injunction & back pay are available for all Title 7 violations.
 
 Title 7 encompasses virtually all employment practices including any form of discrimination or segregation affecting an individual’s employment “because of an individual’s race, color, religion, sex, or national origin. The language because of is key.
 
Disparate treatment involves consideration of race or some other prohibited qualification- “unlawful intentional discrimination.”
 
“Unconscious discrimination” which arises from stereotypes & other patterned behaviors are never a complete defense, but may be a partial defense to recovery of liquidated or punitive damages.
 
To establish a violation: the law only requires that the prohibited factor (race, sex, etc)                                                      has entered into the employer’s decision-making process.
 
Employer: 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.
 
Employee: An individual employed by an employer.