Employment Discrimination
Clarke
Spring 2016
Employment Discrimination Statutes
• Title VII of the Civil Rights Act of 1964 (race, gender, religion, color, national origin)
• Age Discrimination in Employment Act of 1967 (ADEA)
• Americans with Disabilities Act of 1990 (ADA)
Course Themes
Court versus Congress
Supreme Court has held some shocking decisions in regard to discrimination
Congress amended Title VII in 1991 –
Congress again changed the Title VII in 2009 –
Supreme Court held that a woman was time barred in certain discrimination claims.
Other disciplines?
Psychology
Economics
History
Philosophy
Book –
What is discrimination? What causes it?
What kinds of research or theories are helpful when it comes to this area of the law
What changes people’s minds when it comes to their stance on the issues
Does literature help?
What role do movies and media play?
What does the law consider to be discrimination?
What should the law count as discrimination?
What would be the current practices in our time, that future generations will look back and say “that was discrimination”?
What about rational and true stereotypes? Maternity leave more likely for young women?
Disparate impact – Multiple choice tests which white people are more likely to do better on? Other placement exams which favor more privileged exam takers?
Is it discrimination to engage in affirmative initiatives like affirmative action?
Are all of these things caused by the same root problems?
Who should be protected?
The way you look?
Criminal history?
Sexual orientation?
Transgender?
Not every statute covers all classes or allows “reverse discrimination claims”
Does Title VII, which bars discrimination on the basis of sex include a bar against discrimination on the basis of sexual orientation?
There is no binding supreme court precedent on the matter BUT there is still a circuit split.
The recent 11th Circuit decision led by Judge Posner held that sexual orientation IS covered over under “sex”.
Equal Employment Opportunity Commission
Discrimination claims must be filed with EEOC before litigation may commence
EEOC investigates and
May attempt to conciliate
May file suit
After 180 days, will issue right to sue letter
EEOC also promulgates rules interpreting the three statutes
Time Limits
Must file charge within 180/300 days of alleged discriminatory event with EEOC (or state agency
After receiving right to sue letter, 90 day window to file suit in state or federal court
Lilly Ledbetter Fair Pay Act
[A]n unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title,
when a discriminatory compensation decision or other practice is adopted,
when an individual becomes subject to a discriminatory compensation decision or other practice, or
when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.
(42 U.S.C. § 2000e-5e(3)(A)
Introduction: Some Procedural Basics, History, and Principles
Introduction, Filing Requirements:
Louis Menand, The Sex Amendment: How Women Got in on the Civil Rights Act, The New Yorker, July 21, 2014 (TWEN) – Contrary to the popular misconception, Women did not accidently end up on the bill after an attempt at sabotage. It was the product of deliberate and thoughtful effort and planning by activists who advocated for the cause.
Note to Students, CB pp. Xxvii-xxxi
EEOC, How to File a Charge of Employment Discrimination, at http://www.eeoc.gov/employees/howtofile.cfm – EEOC – Equal Employment Opportunity Commision
Discrimination claims must be filed with the EEOC before litigation commences
EEOC investigates and:
May attempt to conciliate – this means that the EEOC would help the parties reconcile or come to a solution in order to stop litigation from proceeding – this is a win for alternate dispute resolution (ADR)
The EEOC issue a right to sue letter OR they may offer to take the case and represent you in which case the EEOC may file a suit
After 180 days, EEOC can only sue a “Right to Sue” letter – because the time statute of limitations has passed
EEOC also promulgates rules interpreting the three statutes. Whether or not the EEOC gets deference depends on the issue – BUt if the State has an analog of the FEPA office (like Minneota) than the statute of limitations is 300 days.
Time Limits:
Must file a charge within 180/300 days of the alleged discrimination with the EEOC or State Agency
After receiving the Right to Sue Letter, there is a 90 day window to file in s State or Federal COurt
Minnesota has a State Agency but not all States have this.
You can end up time barred by
1. Not filing your charge on time – this must be in writing and on time. It must be mailed in or handed in, in person. If we were Tom Cruise’s Lawyer, we would advise him to send the demand letter to the employer although it is not necessary. But this shows that the plaintiff has at least been engaging in dialogue with the adverse party and attempting to work out the issue before bringing the complaint.
2. Not Filing your claim/action on time
Time Limits Example: If Tom Cruise wanted to sue for not getting the role he would have to file his charge within 300 days of the alleged discriminatory event. He does not need to serve the studio within those 300 days, but he should send them a demand letter in order to start the dialogue. The clock will start ticking at the point where the claimant knew or should have known of the adverse employment treatment and not of the intent behind that treatment.
If Tom Cruise’s employer had a policy that would not hire Scientologists than an action can be brought by facially discriminatory policy. There is no time bar or statute of limitations on discrimination claims based on facial discriminatory policies.
Facially discriminatory policies – Examples
Based on pregnancy
Based on age
Based on criminal history
Based on marital status
Almond v. Unified Sch. Dist. #501 and Notes, CB 599-615, top of the page (skip notes 6-10, do not read Problem 8.1) –
Almond Case – Ricks is the governing case law with respect to the statute of limitations and the time tolling. – The clock starts ticking for the statute of limitations at the point where the claimant knows about the discrimination.
DEFAULT RULE – Rick Case Standard (Supreme Court Case) – at what point does the statute of limitations start?
The Ricks Rule – Accrual for The statute of limitations for an EEOC employment discrimination case – It depends on the knowledge, either constructive (when you should have known) or actual (when you actually knew) that the alleged discriminatory practice occurred and not the alleged discriminatory intent behind that practice.
Is there equitable tolling of the statute of limitations – Statute tolling doctrine
Should the time start when you should have had a reason to know? The court has not decided yet…Circuit courts are split – You can argue that the court should toll the statute of limitations to the time where the claimant should have known.
Time limits on the statute of limitations can be tolled or waived by the employer or the parties
Questions:
Imagine you just received a call from a potential client who thinks she was fired because of sex discrimination. She asks you how long she can wait before deciding whether to file suit. What would you advise?
She should write a demand letter to the employer. She can ask the the EEOC for a right to sue letter and she must file the suit as soon as possible because she must file the suit before the statute of limitations runs which is 180 days federal and 300 for the State of MN
What if she was fired 5 years ago, but had no reason to suspect it was sex discrimination until her former boss let it slip last week that he didn’t think women belonged on construction sites?
She has no remedy because the statute has already run. The statute starts to run at the point when the plaintiff knew or should have known they had suffered some negative employment decision.
What if the client wasn’t fired, but rather, she just found out that for the last 5 years, she’s been making less money than her male counterparts for doing the same job?
The statute will start tolling as the last check which she received discriminatory compensation. So long as it is the unequal pay for equal work under the Lilly Ledbetter Fair Pay Act.
What if she’s been sexually harassed for the last 5 years?
It starts tolling at the last incident of sexual harassment that was part of the same type or group of harassment.
What if she just learned that in six months, she’ll be demoted to a job where she will make less money?
When she learns of the action she can create the demand letter.
What if she finds out she was denied a promotion because her employer has had a policy for the last 50 years forbidding women from being promoted into jobs that are dangerous?
Facially discriminatory policies can be charged at any time if the policy is still in effect.
Amtrak v Morgan – 2002 Supreme Court Case – The statute of limitations for EEOC employment discrimination claims will start to run based on the last incident of harassment. Some courts apply the rule differently and try to break the chain of harassment based on whether the most recent discrimination act was actually part of that same type or group of harassment based incidents.
There is an exception for tolling the statute when there is a CONTAMINATED Environment – the environment is inherently and flagrantly harrasatory
Doctrine of Laches – a defense for the employer which the employer must prove. helps courts weed out the bad claims – This doctrines asks the question: Was there an unreasonable delay in bringing suit?
Lilly Ledbetter Fair Pay Act – January 29, 2009. The Act amends the Civil Rights Act of 1964. The new act states that the 180-day statute of limitations for filing an equal-pay lawsuit regarding pay discrimination resets with each new paycheck affected by that discriminatory action. BUT Only for discrimination in compensation claims pursuant to that act. The law directly addressed Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), a U.S. Supreme Court decision that the statute of limitations for presenting an equal-pay lawsuit begins on the date that the employer makes the initial discriminatory wage decision, not at the date of the most recent paycheck. Males have been making more money than her since 2007.
Even though more time had passed than the statute of limitations allowed for, She can sue because she never discovered the injury. In this case the injury being that she was being payed much less than the males in the same work positions.
42 USC § 2000e- 5e (3)(A) – For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this subchapter, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.
Should there be a separate rule for pay vs other employment factors?
actice occurred and not the alleged discriminatory intent behind that practice.
Is there equitable tolling of the statute of limitations – Statute tolling doctrine
Should the time start when you should have had a reason to know? The court has not decided yet…Circuit courts are split – You can argue that the court should toll the statute of limitations to the time where the claimant should have known.
Time limits on the statute of limitations can be tolled or waived by the employer or the parties
Questions:
Imagine you just received a call from a potential client who thinks she was fired because of sex discrimination. She asks you how long she can wait before deciding whether to file suit. What would you advise?
She should write a demand letter to the employer. She can ask the the EEOC for a right to sue letter and she must file the suit as soon as possible because she must file the suit before the statute of limitations runs which is 180 days federal and 300 for the State of MN
What if she was fired 5 years ago, but had no reason to suspect it was sex discrimination until her former boss let it slip last week that he didn’t think women belonged on construction sites?
She has no remedy because the statute has already run. The statute starts to run at the point when the plaintiff knew or should have known they had suffered some negative employment decision.
What if the client wasn’t fired, but rather, she just found out that for the last 5 years, she’s been making less money than her male counterparts for doing the same job?
The statute will start tolling as the last check which she received discriminatory compensation. So long as it is the unequal pay for equal work under the Lilly Ledbetter Fair Pay Act.
What if she’s been sexually harassed for the last 5 years?
It starts tolling at the last incident of sexual harassment that was part of the same type or group of harassment.
What if she just learned that in six months, she’ll be demoted to a job where she will make less money?
When she learns of the action she can create the demand letter.
What if she finds out she was denied a promotion because her employer has had a policy for the last 50 years forbidding women from being promoted into jobs that are dangerous?
Facially discriminatory policies can be charged at any time if the policy is still in effect.
Amtrak v Morgan – 2002 Supreme Court Case – The statute of limitations for EEOC employment discrimination claims will start to run based on the last incident of harassment. Some courts apply the rule differently and try to break the chain of harassment based on whether the most recent discrimination act was actually part of that same type or group of harassment based incidents.
There is an exception for tolling the statute when there is a CONTAMINATED Environment – the environment is inherently and flagrantly harrasatory
Doctrine of Laches – a defense for the employer which the employer must prove. helps courts weed out the bad claims – This doctrines asks the question: Was there an unreasonable delay in bringing suit?
Lilly Ledbetter Fair Pay Act – January 29, 2009. The Act amends the Civil Rights Act of 1964. The new act states that the 180-day statute of limitations for filing an equal-pay lawsuit regarding pay discrimination resets with each new paycheck affected by that discriminatory action. BUT Only for discrimination in compensation claims pursuant to that act. The law directly addressed Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), a U.S. Supreme Court decision that the statute of limitations for presenting an equal-pay lawsuit begins on the date that the employer makes the initial discriminatory wage decision, not at the date of the most recent paycheck. Males have been making more money than her since 2007.
Even though more time had passed than the statute of limitations allowed for, She can sue because she never discovered the injury. In this case the injury being that she was being payed much less than the males in the same work positions.
42 USC § 2000e- 5e (3)(A) – For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this subchapter, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.
Should there be a separate rule for pay vs other employment factors?
