Employment Discrimination Outline
Enforcement Schemes
Under the Constitution or Section 1981
Do not need to exhaust all administrative Remedies before filing suit.
These claims are filed directly in the appropriate state or federal court, subject to the applicable statute of limitations.
Administrative Prerequisites Under Title VII
Requirements (Pg. 27)
i. One cannot file an unlawful employment discrimination claims under Title VII unless she has exhausted the administrative remedies from the EEOC.
ii. In this regard, in order to bring a suit the plaintiff must file a charge (a written statement under oath sufficiently precise to identify the parties and to describe generally the action or practices complained of) with the EEOC within 180 days after the alleged adverse employment action occurred or within 300 days after it occurred if the aggrieved party has initially instituted proceedings with a state or local agency with authority to grant or seek relief.
iii. Furthermore, the plaintiff must timely file a complaint in state or federal court within 90 days of receipt of the right-to-sue notice from the EEOC.
b. Triggering of Charging Period
i. The EEOC charging period is triggered when a discrete unlawful practice takes place.
1. When a discriminatory compensation decision or other discriminatory practice affecting compensation is adopted
2. When the individual becomes subject to a discriminatory compensation decision or other discriminatory practice affecting compensation; or
3. When the individual’s compensation is affected by the application of a discriminatory compensation decision or other discriminatory practice, including each time the individual receives compensation that is based in whole or part on such compensation decision or other practice.
a. Ledbetter Fair Pay Act now in Enforcement
i. Reinstates the “paycheck rule”, which allows courts to consider the receipt of a paycheck or other benefits stemming from the initial discriminatory pay decisions to constitute a separate discriminatory act for Statute of limitations purposes.
c. Equal Pay Act of 1963 (See Pg. 406 for Standard)
i. The Act requires that men and women be given equal pay for equal work in the same establishment
1. Not identical jobs, but jobs with substantially equal content
2. Differentials are permitted when they are based on seniority, merit, quantity or quality of production, or a factor other then sex.
Meaning of Employee/Employer
Meaning of Employee (pg. 51)
The Focus on whether someone is an employee focuses on the touchstone of the employers “control” over employees day to day work.
Title does not determine employee status.
Meaning of Employer (pg. 55)
Under Title VII
e act
i. An act that in itself constitutes a separate action unlawful employment practice and that is temporally distinct.
b. Acts that are continuing in Nature
i. hostile work Environment
1. Is A succession of harassing acts, each of which “may not be actionable on its own.”
Constructive Discharge (Pg. 98)
i. Under the Doctrine of constructive discharge, an employer engages in unlawful discrimination when an employee involuntarily resigns in order to escape intolerable working conditions that she is subjected to because of her race, sex, national origin, or religion.
ii. Courts are Split on the Standard to Apply
1. Majority Apply Objective Standard (Majority)
a. That a constructive discharge occurs when a reasonable person would have felt compelled to resign because of intolerable discriminatory working conditions.
2. Minority Apply Subjective Standard
a. Requires a plaintiff to prove that his employer deliberately engaged in a course of unlawful discriminatory conduct designed to force him to quit.
i. Note: A finding of intentional conduct is critical under the minority view.
