Title VII
Remedies
– Know whether it is intentional
o If intentional 706(g) of Title VII plus §1981(a) compensatory and punitive damages are available
§ For punitive damages you must meet the reckless indifference standard subject to caps
§ Compensatory damages subject to caps
§ You cannot get remedies under §1981(a) if you could have sued under §1981
· So bring racial discrimination complaints under §1981 and Title VII
o If unintentional only § 706(g)
– §706(g)
o Injunctive relief
o Affirmative relief
o Make whole relief
§ Front pay (no cap)
§ Back pay (no cap)
§ Seniority
§ Atty fees
Intentional Discrimination (Disparate Treatment)
– there are damages allowed for intentional discrimination not allowed for other forms of discrimination under §1981 (a)
o punitive damages
o compensatory damages
Title VII
– Civil rights act of 1964
– Most comprehensive statute regarding employment discrimination
– Prohibits discrimination by employers, employment agencies, labor organizations/unions, and committees
– Prohibits discrimination on the basis of race, color, religion, sex, and national origin
– construed to prohibit sexual harassment in employment
Title VII §701(b)
– requires that an employer have 15+ employees for each working day for 20+ calendar weeks during the previous calendar year
o part-time employees count toward the 15
o unpaid volunteers are not employees for the purposes of Title VII
Equal Employment Opportunity Act of 1972 (Title VII amendment)
– applies Title VII to employers with 15+ employees, rather than 25+
– brought employees of federal and local gov’t under the protection of Title VII
– gave EEOC lawsuit authority
Sec 501 of Vocational Rehabilitation Act
– must exhaust all administrative remedies before filing in court
Title VII
– must try to resolve through EEOC before you can file with court
Programs Receiving Federal Financial Assistance
– do not need to exhaust admin remedies
Reconstruction Era Civil Rights Act
– to the extent this applies you do not have to exhaust admin remedies
SC
– issue of whether ER meets minimum ee requirements is a question of fact, not jurisdiction
– by not objecting to whether they meet ee requirements D waives the right to enforce that requirement
– where a court concludes that it lacks subject matter jurisdiction it must dismiss the case entirely
EEOC
– does not have a lot of authority now and had less in 1964
– In 1964 the EEOC did not have any lawsuit authority, they could only counsel and conduct talks to try to eliminate the discrimination
– In 1972 given lawsuit authority
EEOC Admin Process
– file charge with EEOC (Title VII §706(e))
o 180 days from the last act of discrimination
o 240 days from the last act of discrimination in deferral states (MI)
– file judicial complaint w/in 90 days of right to sue
– investigation of charge should be completed w/in 180 days from filing
– if investigation is not completed w/in 180 days, RtS is not required to be issued unless requested by complainant
Federal Employees
– W/in 30 days of last act of Discrimination you go see EEO counselor in your agency
– w/in 30 days of visit to counselor you file a formal written complaint
– btwn 90-180 days you should receive a decision
– if not received w/in 180 days from filing of formal written complaint you may file a judicial complaint
– if you get a decision you may go to court w/in 90 days of receipt of that decision
Determining Date of Last Act of Discrimination
– Determine the type of discrimination complained of
o what is complainant being denied on the basis of discrimination
§ promotion, job, benefits, etc.
– Standard of Review
o De Novo only in certain situations
o Abuse of Discretion?
– Factual disputes of when LAD occurred should be decided at trial
Evans
– you must show there is a present violation that has taken place within 240 days of your EEOC charge to establish discrimination
– Title VII §703(h)
o special protection for bona-fide seniority systems
Civil Rights Act of 1991
– would not overrule Evans
– overruled a number of SC cases
o congress felt that the SC was misinterpreting their legislative intent in Title VII
28 USC §1658
– statute of limitations provision which creates a 4 year SoL for statutes enacted after 1990
o they do not have their own statutes of limitations
Civil Rights Act of 1991
– primary purpose is restorative
o legislatively overrules 8 decisions of the SC that year
– motivated by a decision of the SC that undermined their intent in disparate impact law
– wanted to equalize remedies – for all victims under this act to have access to the same remedies
SC on Sexual Harassment
– In every Sexual Harassment Case, same sex or opposite sex, just as in every other case under Title VII, the issue is whether one sex is exposed to disadvantages terms or conditions of employment to which members of the other sex are not exposed
– There can be same sex sexual harassment
– 2 requirements
o Sexual Harassment must be based upon sex/gender
o There must be an objective standard to determine if there is discrimination
Kerr v. Enoch Pratt Free Library of Baltimore City – 1945 [2]
– Issues:
o when do an employer’s actions constitute unlawful discrimination
o does their motivation to discriminate have to be personal prejudice
o is customer preference a defense to employment discrimination
o what evidence should suffice to establish unlawful discrimination
– Facts:
o June 14, 1933 the trustees formally
enting the employees
– Holding
o court would not consider the substantial identity or substantial control theory unless the international organization was joined
Alexander v. Rush North Shore Medical Center
– Issue
o congress did not well define the class of persons subject to Title VII protections
o does P in this case fall in that class
o is the doctor here protected under Title VII
– Test under Doe (no longer valid)
o was the hospital an employer
o did the hospital interfere with the Plaintiff’s employment on the basis of P’s membership in a protected class
– Test here
o the extent of the employer’s control and supervision over the worker, including directions on scheduling and performance of work
o the kind of occupation and nature of skill required, including whether skills are obtained in the workplace
o responsibility for the costs of operation, such as equipment, supplies, fees, licenses, workplace, and maintenance of operations
o method and form of payment and benefits
o length of job commitment and/or expectations
– Holding
o the doctor is an independent contractor and as such is not protected under Title VII
– 154 Fed.3d 113 – compare to this case
o decided under ADA Title III
Callaway
– claim of difference in pay based on racial discrimination – LAD is every day that the disparate treatment in pay continues while the person being discriminated against is employed with the company
o black female paid less than her white predecessor
Texas Dept of Community Affairs v. Burdine
– Proving/Disproving Intentional Discrimination
o Plaintiff must make a Prima Facie case of Intentional Discrimination
§ Plaintiff’s Prima Facie case creates a presumption of discrimination
o Employer only has to articulate a legitimate non-discriminatory reason to disprove Intentional Discrimination (burden of production)
§ must do so through production of evidence, not just through oral persuasion of atty
o The employee must then show that this articulated reason is a pretext, there was a discriminatory rational for the employer’s decision
– Most Courts no longer use this burden-shifting instruction for juries (federal and MI)
St. Mary’s Honor Center v. Hicks [70] (1993)
– Facts
