Employment Discrimination Law Outline A. Intro a. The Problem of Discrimination in Employment: i.

There are 3 difficult legal and policy questions in ED: 1. What is discrimination? 2. How is it proven? a. Disparate Treatment when ER decides to discriminate against a particular group intentionally (based on a ill motive or certain dislike) b. Disparate Impact when a neutral practice has an adverse impact on a protected group and that lacks business justification i. E.g. When ER decides that all firefighters working for ER have to be 6 feet tall or taller there is no disparate treatment b/c no intentional exclusion of a certain category but in practice, ER will have mostly tall men which do not include Asians or Latinos (so disparate impact) 1. Have to look at whether disparate impact is job related or not a. If Fire Dept can show that its rule is job related, then there is no discrimination b. But if P proves that it is not job related, then there is discrimination ii. Note under constitutional analysis, disparate impact is not enough (equal protection claim also requires intent) but, under Title VII analysis, impact alone is enough in 1989 and 1990, Supreme Court made several decisions to eliminate Disparate Impact, so in response Congress in 1991 passed the Civil Rights Act of 1991 and Pres. Bush signed it into law. Congress later also added the Pregnancy Discrimination Act to Title VII to clarify the fact that discrimination against pregnant women is based on sex. 3. If proven, what are the appropriate remedies? b. Laws Prohibiting Discrimination in Employment: Major Federal Laws on ED: Statute: Title VII (Fed Employment Discrimination Act) Covers: - race - color - religion - sex (does not include sexual orientation)

ADEA ADA

- natl origin Age is greater than 40 (EEs/applicants must be at least 40 to be part of protected class) Qualified Individual w/a disability i. Enforcement Schemes: 1. ED claims brought under Title VII, the ADEA, and the ADA are subject to both administrative processes and adjudication in civil court a. Exhaustion of admin remedies is a prereq. to a lawsuit brought under these statutes 2. Procedurally EEOC [Equal Employment Opportunity Commission] is the administrative agency charged with administrating Title VII a. Private (private attys can bring suit) and Public (EEOC is supposed to also bring actions) Actions i. EEOC also drafts policy guidelines on claims based on discrimination b/c of sex, religion, national origin, and harassment, and on employment selection procedures the court is supposed to give them utmost deference ii. EEOC has statutory authority to promulgate procedural regulations to enforce Title VII and the ADA. b. State and Federal Actions c. State and Local laws DFEH (Department of Fair Employment and Housing the California parallel to the EEOC) d. Bottom line is an individual plaintiff cannot file lawsuit must first go to the EEOC and get a right to sue letter you get it if the EEOC doesnt want to take your case or because they run out of time and cant decide within the statutorily required timeframe 3. Administrative Exhaustion: a. National Railroad Passenger Corp. v. Morgan i. Ct asked: For discrete discriminatory acts and hostile work environment claims: 1. What constitutes an unlawful employment practice? a. Practice applies to a discrete act or single occurrence, even when it has a connection to other acts. Specifically, what is discrimination? Is it a discrete act? Yes this is what the Ct determines here.

i. But there may be harassment and retaliation and pattern and practice where not discrete act. 2. When has such a practice occurred? a. A discrete retaliatory or discriminatory act occurred on the day that it happened. A party, therefore, must file a charge within either 180 or 300 days of the date of the act or lose the ability to recover for it. c. What rights to EEs have to be treated fairly in the work place and what right do EEs have to keep their job if theyre doing a good job? i. Two models have been used to approach these questions: 1. Industrial Justice Model you develop a right to your job (whether a property or human right) and you only lose your job if you did something wrong and the ER can prove that you did something wrong