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Employment Discrimination
Villanova University School of Law
Juliano, Ann C.



The Administrative Phase

Timing is critical in filing a claim – missing the time frame to file has sent more s out of court than anything substantive.
You cannot go to court without exhausting your administrative remedies:

Very first thing: Must file a charge with the EEOC and a state agency (if one exists)
TheEEOC dockets the charge and serves notice on the employerwithin 10 days that a charge has been filed.
The EEOC investigates the charge:

If the EEOC finds no reasonable cause to believe there is a violation of the statute, they dismiss the charge and send a notice of dismissal to charging party

does not mean is done π can still sue privately within 90 days of the notice
but the employer may be able to use this information at trial (admissible in some courts, inadmissible in others)

If the EEOC finds reasonable cause, they try to conciliate and mediate to fix the problem if they cannot fix the problem:

EEOC can sue the employer OR
EEOC can give the employee a right to sue letter must sue within 90 days of the letter

In any event, after 180 days, the employee can ask the EEOC for the right to sue letter or it can sit and wait to see what the EEOC decides

Once you have your right to sue letter, or notice of dismissal, you have 90 days to file suit

Deferral v. Non-Deferral States

If there is a state agency – DEFERRAL STATE:

you must file with the state agency first
the state has 60 days of exclusive jurisdiction – even if the EEOC receives the charge, it may not act (EEOC defers to state agency for 60 days)


some state agencies and EEOC have work sharing agreements stating that a charge filling w/ one agency is considered having been filed w/ the other agency (i.e. whoever it gets filed w/ first processes it for both agencies)
Ex. in PA get to one of the agency’s w/in the time and you’re fine

After 60 days employee may file with the EEOC even if they have not heard from the state agency; the employee must file with the EEOC within 30 days of the termination of the state agency action OR within 300 days of the unlawful employment practice (whichever is earlier)
the latest point for filing with the EEOC is 300 days after the unlawful employment action

so if you are operating in a deferral state – you really need to file by day 240 after the unlawful employment action so you can get to the EEOC within this 300 days

If there is not a state agency – NON-DEFERRAL STATE:

you have to file with the EEOC within 180 days (do not need an attorney for this); soonest you can file is day zero (which is the first day).
the soonest you can request a right to sue letter is 180 days after filing the charge. EX – day 360 – file on day 180, plus 180 days have passed before you can request
if you get the right to sue letter, you have to file suit within 90 days in either federal or state court.

What counts as a charge?

Halowecki- charge must have minimal information required by the regulations:

Allegation (generally alleges the discriminatory acts)
Name of the charged party (alleged violator)
Reasonably construed as a request for the agency to take remedial action to protect the employee’s rights or otherwise settle a dispute b/w the employer and the employee.

Does it objectively meet the requirements?

Ex. “I’m a female, I live in America, I’ve been discriminated against by ____ please help me.”

Counts as a charge even if the EEOC fails to docket it appropriately
Employers required to put up posters that say what to do if you feel discriminated against (puts you on notice)
File in the state where your employer is

Timing Based on Types of Charges: The difficulty is often in determining what day is day 0?

General Rule: notice of decision is day 0 – when you find out you are not getting promoted or you are getting fired (even if I say, I’m firing you, you have two weeks- its the date I say I’m firing).

Applies to Discrete Acts

Includes hiring, firing, denial, promotion, or demotion, occur when notice of the decision is given to the EE

Does not depend on whether the employee realized the cause of the injury was unlawful
Discovery Rule – the unlawful employment action occurs, and the clock for the filing starts running, day 0 is when the employee knew or should have known discrimination was behind the decision

In a footnote but has never been formally adopted

Discrimination Claims under the Lilly Ledbetter Act (Pay Discrimination)

Ledbetter v. The Goodyear Tire & Rubber Co., Inc.
Compensation discrimination claims accrue “when a discrimination in compensation decision or other practice is adopted” OR when someone becomes subject to or affected by” its application
Codified Paychecks Rule

Claims alleging discrimination in pay are timely if filed within 300 days of receipt of a paycheck that is less, due to discrimination

Hostile environment claims

hostile environment claims are timely provided the charge is filed within 300 days of any act constituting part of the same unlawful employment practice (Morgan)

b/c hostile work environments can’t be pinpointed to one day

has to actually change the work environment – likely a series of acts (i.e. one act usually not enough)

Facially Discriminatory Policies – may be challenged at any time within 300 days at the policies application to the π
Discriminatory Seniority Policies – may be challenged whenever they affect individuals
Employment Tests/Devices

Lewis- Every time employer hired from a list derived from discriminatory test scores was an unlawful employment action challengeable as day zero.

Can challenge when the test is given
Can challenge when the lists are made

But if you don’t, Every time you apply the results of the discriminatory test counts as an unlawful employment action (and therefore day zero).

Every time there’s a hiring from the test scores there’s an impact.

Acts Outside the Time Period of Filing

Entire scope of a claim, even behavior alleged outside statutory time period, is permissible for assessing liability, so long as one of the acts occurred within the statutory time period
Events outside of the filing period may be relevant as background evidence or as evidence of intent to discriminate

Judicial Relief/Remedies:

Basic Goal is to provide a successful π with “make whole” relief which should, in turn,

he ADEA, liquidation damages must be awarded for punitive purposes

Liquidated damages may be awarded in the amount equal to the amount of unpaid wages.
Not available in Federal employee ADEA actions
figure out your back pay award and possibly front pay

in the case of a willful discrimination, you get double back pay
but there is no compensatory damage argument


Discrimination on the Basis of Sex:


What is “sex” for purposes of Title VII?
Different ways to define “sex” in “because of sex”:

biological sex (covered)
non-conforming to gender or sexual stereotypes (actionable but difficult to distinguish)
sexual orientation (NOT covered)

Sexual Orientation

Sexual orientation is NOT covered by Title VII!!BUT sex stereotyping IS covered!!

The word “sex” in Title VII means biological sex or gender.
Sexual orientation could apply to either sex so it is not covered under the statute (although it is protected by the Equal Protection clause of the Constitution).
We draw the line between discrimination due to sex-stereotyping (actionable under PW) and discrimination due to sexual orientation (not actionable).

Same-Sex Harassment:

Same-sex harassment IS actionable under Title VII:

Oncale v. Sundowner Offshore Services, Inc.

Male worked for at an offshore oil rig company. was subject to sex-related humiliating actions, physical assault, and rape threats. felt that if he didn’t leave his job, he would be injured so he quit.
HELD: Same-sex harassment IS actionable under Title VII.

Title VII does not say it only protects women – can protect men too—this wasn’t the “principal evil” the statute was enacted to stop but it still covered (court called it “comparable evil”)
Look at the plain language of the statute – if one sex is receiving disadvantageous treatment and being targeted when the other sex is not, then it is because of sex.

The behavior does not have to be sexual in nature to violate the statute

Difficult to draw the inference of discrimination for same-sex discrimination.

Social context is critical

think – different behavior is expected on an oil rig compared to a law office. EX – football butt slap vs. secretary butt slap in
here – this was not ordinary horseplay/flirting/playing

Reasonable person standard – use common sense (objective severity)