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Employment Discrimination
University of California, Davis School of Law
Joslin, Courtney G.

Ä      Requirements
Ø       Are the Size Requirements Met?
§         Title VII: (Judaism and Muslim not included in “race”) 15 or more employees
§         ADA: 15 or more employees for 20 weeks in order for the employer to be covered.
§         ADEA: 20 or more employees
§         Rehab Act: Federal government and contractors with the federal government
§         Section 1981: no employee requirement
Ø       Is the person an “Employee” within the meaning of the Act?
§         Employees (is the particular person protected under the statute / does the EE count toward reaching the required size requirement – analysis is the same): CONTROL
o        Employee status is based on right of control … an EE is a person whose work is controlled or subject to a right of control by the “master”/ ER.
·         Consider whether the organization can (Clackamas):
§         Hire/fire them
§         If organizes supervises them
§         Whether individual reports to someone higher
§         Whether the person is able to influence the organization
§         Whether the parties intended the individual to be an EE (written agreements or contracts)
§         Whether the individual shares in the profits, losses and liabilities.
§         A person w/ control is not someone who needs protection.
o        Under Title VII, employer is owners, those with “master” status.
·         Employee can include manager, supervisor, etc.
·         Not State Elected and Appointed Officials under Title VII
o        Volunteers: any remuneration and/or benefits qualifies someone as an EE
o        Not independent contractors: [unless §1981] §         Under Title VII, ADA or ADEA indep contractors are not EEs
§         Under §1981 independent contractors are STILL covered (§1981 doesn’t require EE/ER relationship, just requires a contract)
·         Hiring parties right to control the manner of the work
·         The skills required (do you come with them or do you get training)
·         The location of the work
·         The source of the instrumentalities and tools
·         The duration of the relationship between the parties
·         The method of payment
·         Tax treatment
Ø       Statutory Exemptions:
§         Bono fide private membership clubs (under Title VII only, not Section 1981)
§         Indian Tribes (under Title VII and ADEA)
§         Military: Service members cannot sue; may be situations where civilian Ee’s can
Ø       Timely filing requirement (Title VII)
§         In order to assert a claim of discrimination under Title VII, an aggrieved employee must initially file his/her claim with the Equal Employment Opportunity Commission (EEOC) and/or its State counterpart.
§         The charge must name the employer/defendant, generally describe what the P believes the ER did to violate the Act and finally it must ask the EEOC to take some action.
o        There may be a question as to whether a letter to the EEOC is sufficient; the court will have to ask whether the letter sufficiently asked the EEOC to take some action. If it did then the letter is sufficient, even if it is not written on an official charge form, as long as it is actually sent to the EEOC.
§         Such claims must generally be made within 180 days (or 300 days if in a deferral state) after the alleged incident of discrimination.
o        To determine when injury occurred: 
·         (1) discrete act – occurs on the day that it “happened.” Discrete acts falling outside the statute of limitations are not timely, but can be used as evidence that what happened inside the sol was discrim.
·         (2) continuing violation – demonstrate hostile work environment, systematic policy or practice of discrimination occurring at least in part within the sol.
·         FPA – if person complaining about discrim / compensation, it is timely as long as P received paycheck within the time period, even if original decision to give that pay was made long ago and P knew of the decision and the discrimination it represented.
§         Subsequent to a finding of probable cause that discrimination has occurred, an attempt at conciliation is made to resolve the finding with the employer.
o        If conciliation is unsuccessful, the EEOC may elect to file suit or issue the charging party a “right to sue” letter.
o        If such a “right to sue letter” is issued, the charging party has 90 days in which to file suit in court.
·         In some courts receipt of the letter starts the 90 day clock running, in other courts the dispatch of the letter starts the clock running.
·         Furthermore, the SCt says there’s presumption that the person received the letter 3 days after the date it was mailed. Some circuits have a presumption of 5 or 7 days.
Ø       Timely filing requirement (ADEA)
§         Under the ADEA the person does not need a right to sue letter to file in court,
§         But they must file a timely and sufficient letter with the EEOC and must wait at least 60 days from the date of their filing with the EEOC before they can file in court. 
§         IF the P does receive a right to sue letter or a conciliatory letter then the P must file suit within 90 days from receipt of that letter.
o        In some courts receipt of the letter starts the 90 day clock running, in other courts the dispatch of the letter starts the clock running.
o        Furthermore, the SCt says there’s presumption that the person received the letter 3 days after the date it was mailed. Some circuits have a presumption of 5 or 7 days.
Ø       Equitable tolling – The ct can excuse P’s failure to comply with the time deadline for some good reason, including:
§         ER failed to post notices in the office telling people about their rights and time deadlines. Ct excused P’s failure to comply
§         Someone from EEOC deliberately misled a complainant about the deadlines.
§         Where complainant has mental incapacity.
Ø       Waiver
§         If D fails to raise that P’s failed to comply with timeliness requirements it may waive its right to protest the failure.
Ø       Laches
§         Sexual Harassment case or FAIR PAY ACT case – Laches –
§         “An ER may raise a laches defense which bars a P from maintaining a suit if he unreasonably delays in filing a suit and as a result harms the D. This defense ‘requires proof of (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense” (Amtrak v. Morgan)
Ø       Piggybacking
§         2d Cir in Holowecki – yes can piggyback so long as the allegedly unlawful action is the same.
§         3d Cir in Communications Workers of AM – A party cannot piggyback on another party’s EEOC charge unless the claim is part of a class action. P’s must file for themselves.
§         The Sct has not address this issue.
Ø       Scope of the Lawsuit
§         The P’s lawsuit is limited to the scope of the EEOC investigation, which can reasonably be expected to grow out of the charge of discrimination. 
§         In circuits that apply this rule:
o        If person checks sex and in narrative section talks about retaliation, then the court would likely allow the P to bring both sex discriminatio

o        At-will employment means the ER may hire/fire an EE for a good reason, bad reason, or no reason at all so long as the decisions are not made for illegal, discriminatory reasons.
·         Employer does not need to show that it engaged in practices that allowed it to seek the most diverse work force.
·         There is a managerial prerogative to make judgments – not necessary for employer to show tried to maximize diversity or that another candidate was more qualified. Must just show that it did not make decisions due to unlawful discriminatory intent.
o        D may argue: P’s absolute or relative lack of qualifications; Absence of vacancy in the job sought.
o        Because most circuits apply honest defense rule – if the D can show that it HONESTLY BELIEVED the reason they espoused (even if that reason was ultimately not true), the EE loses.
o        OR, D may argue a BFOQ (affirmative defense à burden of persuasion)
·         The D must show that all or substantially all of the persons from the excluded group cannot perform the job function at issue
·         Or that the ability to perform the job function reasonably cannot be ascertained by means other than consideration of the prohibited characteristic
§         Qualification for BFOQ defense depends on the job (not the ER’s definition of the job)
·         The job function at issue are reasonably necessary; and
·         The job functions go to the essence of the business operation.
§         The D must prove that the essence of the business operation would be undermined if the discrimination weren’t allowed
§         Step 3: Plaintiff’s Surrebuttal –
o        Can show that D’s LNDR is actually pretext (McDonnell Douglas)
·         A pretext is a fabricated justification that allows for the inference that the ER is concealing discrimination.
·         IN some circuits the P must reput every reason the D raised, in other circuits as long as the P presents enough evidence for a jury to find that one reason was pretextual then the P may have made its case.
·         P can show pretext by demonstrating by direct or circumstantial evidence:
§         Reason has no basis in fact
§         Reason did not actually motivate D’s conduct
§         Reason was not sufficient to warrant D’s conduct
§         Weaknesses, implausibility’s, etc. may allow for inference of pretext.
§         Direct comparative evidence (was D consistent?)
§         D’s treatment of P during employment
§         D’s reaction to P’s lawful activity
§         D’s general policy and practice (stats helpful)
§         Preliminary Conclusion
o        Regardless, the showing of pretext may not be enough, even if the ER’s explanation is mistaken, foolish, trivial, or baseless. 
Rejection of the D’s proffered reasons permits a finding of intentional discrimination, but does NOT compel judgment for the P. P must show the reason