Employment Discrimination
Juarez
Spring 2016
I. Filing a Claim, Summary Judgment and Trial
a. EEOC
i. Deadlines for filing a charge of discrimination 42 U.S.C. §2000e-5(e)(1)
1. 180 days of discriminatory event
2. 300 days if state or local equivalent of the EEOC exists in a particular jurisdiction
a. Colorado (DORA)
3. Worksharing agreements
a. Filing with EEOC= filing with state agency
b. Waiver of 60-day period for completion of state agency
ii. Handling of Charges of Discrimination
1. Conciliation
a. Effort by the government to settle a discrimination charge before it reaches federal court.
b. Usually attempted in those cases where the Commission has found cause to believe discrimination has occurred
2. Investigation= Free Discovery
3. EEOC determines discrimination has occurredà Settlement talks
a. If fail, EEOC may sue in federal court on behalf of charging party
i. Charging party may join suit or may file suit even if EEOC declines to do so
4. EEOC finds no discrimination
a. Issue a Notice of Right to Sue
i. Charging party must file suit within 90 days
b. Employment Discrimination Laws
i. U.S. Constitution
1. 14th Equal Protection Clause
a. “No State shall…deny to any person within its jurisdiction the equal protect of the laws”
2. 5th Dues process clause
a. “No person shall be…deprived of life, liberty or property, without due process of law”
3. 1st amendment
a. Religion
b. ER defense in Sexual harassment case
ii. Federal Statue-Part I
1. 42 U.S.C. § 1981 (Private ER’s)
2. 42 U.S.C. § 1983 (Public ER’s)
iii. State and Local Laws
1. Colorado DORA (24-34-402)
a. No requirement of number of EE (everyone is covered)
b. Broader
i. Includes sexual orientation
2. City of Denver
a. Anti-Discrimination Ordinance (Chapter 28, Article IV of Denver Revised Municipal Code)
i. Covers sexual orientation and gender variance
c. Time Deadlines and the Admin Process
i. National Railroad v. Morgan (pg.20)
1. Discrete acts
a. Start their own separate charge filing deadline.
i. Termination, failure to promote, denial of transfer, or refusal to hire
1. Plaintiff has strict 180-300day limit
b. Untimely claims can be used as background evidence
2. Hostile Work Environment
a. Uses continuing violation doctrine:
i. 9th cir- Claims are allowed “so long as the untimely incidents represent an ongoing unlawful employment practice.”
b. Based on cumulative effect of individual acts
c. Can go beyond 300 day limit = No SOL
ii. Prohibited Retaliation for filing a claim (ER)
1. ER’s should be sternly counseled against any kind of retaliatory conduct. While an ER need not treat a worker any better because the worker has filed a compliant, and ER must be extremely cautious not to take an adverse action against the worker because of a complaint.
a. ER may not take any adverse action that would dissuade a reasonable worker from filing a charge of discrimination.
i. Burlington N. & Santa Fe. Co. v. White
iii. Standing and Coverage Requirements
1. A plaintiff will only be permitted to proceed if that worker has standing to bring a claim and the ER is covered by the statute
a. Title VII/ ADA = ER must have 15
outside the pleadings cannot be considered.
b. Rule 8(a)- Pleading
i. (a) Claim for Relief. A pleading that states a claim for relief must contain:
1. (1)-A short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support
2. (2)- A short and plain statement of the claim showing that the pleader is entitle to relief; and
3. (3)- A demand for the relief sought, which may include relief in the alternative or different types or relief.
c. Swierkiewicz v. Soerma
i. The SC holds that all that is required in Rule 8(a)(2) is a short and plain statement-notice pleading. For a Discrimination claim.
ii. MDD is an evidentiary standard used to determine whether plaintiff should prevail at trial, not a pleading requirement.
iii. MDD does not apply in all disparate treatment cases
1. Not required if there is direct evidence of discrimination
2. Direct evidence may be uncovered during discovery.
iv. You do NOT need to prove the prima facie case in your complaint to survive dismissal
d. Rule 9(b)
i. “In all averments of fraud or mistake, the circumstances constituting fraud of mistake shall be stated with particularity.”
ii. Malice, intent, knowledge, and other condition of mind of a person may be averred generally
