Employment Discrimination Fall 2017 Clarke
Exam: Thursday, 12/14/17 at 8:30 a.m. 3 hour open-book and open-note
Unit I: Introduction, Procedural Basics, History, and Principles
4 Major Statues:
ADEA – age discrimination employment act
ADA – Americans with disabilities act
Title VII
42 U.S.C. § 1981
Introduction, Filing Requirements
What is employment discrimination? Employment discrimination is discrimination by employers on the basis of race, sex, religion, national origin, physical disability, or age. (Also growing body of law protecting sex
What is filing a “charge” with the EEOC? A charge is sufficient if it is in writing, names the alleged violator, and generally alleges the discriminatory acts. It must contain:
In writing
Signatures, and
Delivered in person or mail (no email or phone charges accepted)
Introduction, Filing Requirements
Administrative exhaustion requirement: a complainant must file a claim with the EEOC before litigation commences; policy: Title VII prefers administrative remedies over litigation.
Mock Mining v. EEOC – does the EEOC have to attempt to conciliate? Here, the EEOC didn’t conciliate, they just filed suit. The court said that the EEOC must inform the employer and describe the party that was wronged.
Must file charge within 300/180 days of occurrence (depending on state) (most states are 300)
The EEOC has 180 days to conduct an investigation.
Reasonable cause? The EEOC attempts conciliation. If conciliation fails, or the plaintiff gets a right to sue letter, the 90 days to sue starts
No reasonable cause? Dismissal of charge. The charging party can bring private action within 90 days.
After receiving right to sue letter, the plaintiff has 90 days to file suit in state or federal court
The clock starts running when the plaintiff knew or should have known of the injury whether or not he realized the cause of the injury was unlawful
Almond v. Unified School District (2011) – maintenance man’s job eliminated, gave him option to take another job at lower pay, got to keep salary for 2 years. This was in 2003, plaintiff didn’t charge until he was affected in 2006
This was an untimely claim. A claim begins when the employer’s decision is communicated to the employee. Once the employee has notice of the discrimination, the clock starts tolling.
*notice of adverse action rule* – discrimination occurs for purposes of the filing requirement when the employee is notified of the adverse employment decision.
Exceptions:
Contaminated environment exception – the filing clock restarts with each occurrence of harassment.
Policy of discrimination – can be challenged after the party has been affected by it, it doesn’t have to be challenged when the illegal challenge is discovered. Example: mandatory retirement age, clock starts ticking when the policy affects the employee, not when it is implemented
Defenses
Laches – if plaintiff waited a long ass time, the defendant can claim laches and ask why the plaintiff didn’t sue years before.
Lily Ledbetter Fair Pay Act – Amended Title VII, ADEA, and other anti-discrimination statutes, promulgated the paycheck rule – plaintiff can file a timely charge within 300 days of receiving a paycheck that is lower than it would be but for the discriminatory decision. (paycheck rule is 42 U.S.C. § 2000(e)
BUT – can only get 2 years of back pay.
Discovery rule (employee friendly): this would toll the charge filing period until the employee knew that an adverse action was discriminatory (the Supreme Court has declined to comment on this)
BUT, per Almond, the general rule is you must take action as soon as you find out about the discrimination, not five years later when you find out the reason for the discrimination.
Equitable estoppel and tolling – courts give leniency in certain situations such as wrong forum, plaintiff’s unawareness of the facts because of defendant’s concealment, the EEOC misleading the plaintiff of her rights, timely filing with the wrong office, the employer failing to post discrimination notices.
BUT, the 7th circuit has said that employer threatening employee to retaliate if employee filed a charge is not the basis for equitable estoppel
Other Considerations
Final decision
diversity means differences. This recognizes differences, but wants to disrupt them.
Chicago School economic arguments against Title VII
The free market will solve any discrimination, we don’t need legislation to do it.
Employees prefer homogenous workforces
Discrimination is a rational way to prevent conflict among workers
Freedom of association
Barriers to minority advancement have to do with housing and schools, not employment
The costs of discrimination lawsuits are passed on to those Title VII intends to protect
Title VII backfires on those it protects (example: an employer won’t hire a disabled person because they don’t want to pay for the accommodations).
Rebuttals to the Chicago school economic arguments
Ignores the fact that people are not rational
Human capital argument: why continue investing if you know you will be shut down? Why get a college degree if you won’t get a return on your investment?
Non-economic harms: the moral significance is more important than savings on money or efficiency.
The structure of discrimination affects entire groups of people for generations, not just immediately affecting the employee
Discrimination will continue to cause harm if there are not laws to safeguard vulnerable populations
Antidiscrimination laws are necessary to remedy an unjust distribution of resources
These attitudes are so deeply ingrained that there needs to be legal structures in place to help guide society away from discriminatory practices
Left alone, employers will make personnel decisions based on their racial preferences.
Title VII accelerates the process by which discriminatory employers are driven out of the market. It incentivizes inclusion.
