Principles of Employment Discrimination Law
Author:
Chamallas, Martha
Edition:
2nd
Copyright Date:
2023
21 chapters
have results for Principles of Employment Discrimination Law
Chapter 1. Introduction 71 results (showing 5 best matches)
- Although the U.S. Supreme Court has been active in the employment discrimination area, most of the law has been made by the lower courts and is characterized by a lack of agreement and divergent lines of authority. It is important to recognize that the portrait of employment discrimination law that emerges in this book, while including many doctrinal details, is still quite selective in its coverage, focusing mainly on general principles, trends and noteworthy cases.
- A useful strategy for studying federal employment discrimination law is to identify and understand the various frameworks of proof the courts have explicitly or implicitly created to govern the trial of claims under the federal anti-discrimination statutes. The development of federal anti-discrimination law has resulted in a proliferation of such proof frameworks attached both to the various theories of liability—most notably, disparate treatment, disparate impact, and harassment—and to distinctive types of discrimination and statutory violations, such as claims for retaliation, race, national origin and religious discrimination under Title VII or claims brought under the ADEA, the ADA, § 1981, or the EPA. The lower courts can be so preoccupied with articulating the appropriate proof framework for a given context that substantive anti-discrimination principles often get reduced to debates about evidence.
- In addition to in-depth treatment of these three statutes, this book touches briefly on two other federal anti-discrimination laws—Section 1981 of the Civil Rights Act of 1866, the Reconstruction-era statute that prohibits race discrimination in contracts (including employment contracts), and the Equal Pay Act of 1963, which prohibits sex discrimination in compensation. There is also a brief section on the Family and Medical Leave Act of 1993, provide care for family members. Finally, occasional references are also made to various state employment discrimination laws, particularly in those areas where the states have gone beyond the protection of the federal law.
- Despite this expansion, federal employment discrimination law still has serious limitations and by no means protects against the myriad injustices and instances of unfair treatment that occur in the workplace. Notably, the statutes only address discrimination based on one of the specific prohibited bases and, absent proof of such discrimination, provide no protection to an individual who is discharged without cause, bullied, harassed. or targeted for unfavorable treatment on some other ground. As anti-discrimination measures, the statutes generally do not guarantee specific benefits or minimal entitlements, no matter how crucial, but only rectify disparities and inequalities. Moreover, even within the anti-discrimination realm, there are gaps in coverage, exemptions, and narrow interpretations of the law that many critics believe undermine the statutes’ promise of equal employment opportunity.
- One of the most interesting developments in employment discrimination law is its expansion to cover additional groups and claims. For example, Congress amended Title VII in 1978 to cover discrimination based on pregnancy, enlarging the definition of sex discrimination to do so. Starting in the 1980s, the courts interpreted sex discrimination to include harassment based on sex and developed the innovative concept of the hostile working environment that has since been enlarged to cover harassment based on any of the prohibited classifications. In 2020, the Supreme Court expanded the meaning of sex discrimination to include discrimination based on sexual orientation and gender identity, providing important new protections to LGBT employees and individuals.
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Title Page 2 results
Chapter 8. Specialized Areas of Sex Discrimination Law 114 results (showing 5 best matches)
- EEOC Enforcement Guidance, The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Laws (Mar. 14, 2022),
- One pocket of Title VII law that historically has received treatment is the doctrine governing employer grooming and dress codes. Most of the cases challenging grooming and dress codes have been sex discrimination cases, although some employees have argued that their employers’ codes amount to religious discrimination The grooming code doctrine departs so dramatically from mainstream sex discrimination principles that it has created a virtual dress and grooming code exception to Title VII. It is one area of Title VII law where explicit gender classifications are tolerated without having to be justified as a bona fide occupational qualification. Indeed, grooming codes are so well entrenched that even recent proposals to amend Title VII to provide explicit protection against discrimination based on sexual orientation and gender identity contain express provisions insulating grooming and dress codes.
- The Supreme Court’s counterintuitive refusal to regard pregnancy discrimination as sex discrimination drew an immediate negative response from women’s groups and legal commentators, spurring Congress into action. Critics charged that large numbers of employed women were vulnerable to pregnancy discrimination (over 80% of women become pregnant during their lifetimes ) and that gender stereotypes about women’s lack of attachment to the labor force were at their zenith when female employees become pregnant. In response, Congress passed the Pregnancy Discrimination Act of 1978 (“PDA”), adding a new definitional section to Title VII (§ 701(k)) that contains two important clauses. The first clause overrules the underlying reasoning of , stating that “[t]he terms “because of sex” or “on the basis of sex” include . . . “pregnancy, childbirth, or related medical conditions.” By defining “sex” to include “pregnancy,” the first clause presumably puts pregnancy discrimination on par with sex
- The stereotyping approach to proving caregiver discrimination was given a boost in 2007 when the EEOC issued an Enforcement Guidance to employers detailing the ways in which discrimination against caregivers might violate federal law, despite the lack of an express prohibition against caregiver discrimination. although its scope is still limited to practices that violate current anti-discrimination law. The Guidance provides numerous concrete examples of unlawful practices, detailing how employers can discriminate against mothers with young children, stereotype mothers during the hiring process, give biased evaluations of a working mother’s performance, discriminate against male caregivers, treat women of color who are caregivers less favorably than white caregivers, impose more burdensome procedures on LGBTQI+ employees who make caregiver requests. or deny opportunities to employees who have primary responsibility for caring for disabled children, spouses, or parents. Importantly,...
- Employment Discrimination Stories
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Chapter 9. Race and National Origin Discrimination 92 results (showing 5 best matches)
- In constitutional law, race and ethnic classifications are treated similarly, each triggering strict scrutiny and subject to the same doctrinal tests. In statutory employment discrimination law, however, sometimes a distinction is drawn between race and national origin claims, requiring more careful delineation of the meaning of both terms. The law is also complicated by the existence of a separate Reconstruction-era statute (§ 1981) that provides overlapping protection for race and ethnic discrimination plaintiffs.
- discrimination, whether or not they are citizens of the U.S. Thus, non-citizens may prove race, sex, or other forms of discrimination, including national origin discrimination, presumably on the same basis as citizens. Even an employment rule that purports to be based on citizenship may run afoul of Title VII if it is used as a pretext for race or another form of discrimination.
- Courts endorsing intersectional claims have taken note of Title VII’s disjunctive language which prohibits discrimination based on “race, color, religion, sex, national origin.” These courts stress that the use of the word “or” evidences a congressional intent to address employment discrimination “based on any or all of the listed characteristics.” They reason that “discrimination against black females can exist even in the absence of discrimination against black men or white women,” and express concern that black women would be “left without a viable Title VII remedy” if intersectional claims were not recognized. In a case involving an intersectional claim of race, sex, and national origin, a court expressed the view that discrimination could not always be “reduced to distinct components” and that “the attempt to bisect a person’s identity at the intersection of race and gender often distorts or ignores the particular nature of their experiences.” ...aggregate evidence of racial...
- there is no question that Title VII protects whites as well as racial minorities against race discrimination, and thus some “reverse discrimination” claims are cognizable. Opponents of affirmative action programs often insist that the explicit reliance on race in affirmative action programs is no different from other forms of unlawful disparate treatment and should be treated as direct evidence of discrimination. The U.S. Supreme Court, however, has never taken such a restrictive approach and has allowed some room for affirmative action in employment, although its legal status has been precarious.
- As the prior discussion suggests, there is often no sharp demarcation line between claims of race or religious discrimination on the one hand and claims of national origin discrimination on the other. Indeed, multiple types of discrimination are frequently alleged in the same litigation. Thus, the plaintiff who was erroneously perceived to be Mexican also alleged race discrimination on the basis of his African American identity and the color of his skin, and many Middle Eastern plaintiffs frequently charge both national origin and religious discrimination. Moreover, since the early days of Title VII, courts have considered certain racialized forms of discrimination against Hispanic (or Latinx) individuals to be race discrimination and have permitted large-scale class actions to be brought on behalf of both African American and Spanish-surnamed employees. Because race, national origin and religion all qualify as protected categories under Title VII, precise labeling of the type of
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Chapter 5. Disparate Impact Theory 88 results (showing 5 best matches)
- In contrast to disparate treatment, the disparate impact theory of discrimination is notable for requiring proof of intentional discrimination. At first blush, the idea of unintentional discrimination may seem like a contradiction in terms because so often “discrimination” is associated with intentional or purposeful discrimination. But the rationale behind disparate impact theory is that even neutral employment practices can prove harmful to marginalized groups and should be subject to challenge unless proven necessary for successful operation of a business.
- Without qualification, the language of Section 703(k) authorizes disparate impact challenges whenever an “employment practice” causes a disparate impact. This means that disparate impact challenges may be brought not only in the most familiar contexts of race and sex discrimination, but presumably also in cases alleging discrimination based on other grounds enumerated in Title VII, i.e., on the basis of national origin, religion, the Supreme Court has construed the ADEA to permit only a very diluted form of disparate impact liability in age discrimination cases, ruling that Section 703(k) has no application beyond Title VII. Disparate impact liability is also not available to challenge race and national origin discrimination under § 1981.
- Once a plaintiff targets a particular employment practice, the next step in establishing a prima facie case is to offer statistical proof of group disparate impact. Like systemic disparate treatment cases, disparate impact cases turn on statistical proof. In disparate impact theory, however, statistics do not provide a basis for inferring intentional discrimination. Instead, statistical proof in disparate impact cases establishes the causal connection between the challenged practice and the adverse effect and assures that the disparity is not the result of some other factor.
- Disparate impact theory is aligned with a substantive or results-oriented conception of equality. Unlike disparate treatment, it is not principally aimed at assuring that the employer’s decision making process is purged of considerations of race, sex, or other prohibited factors, but is instead directed at the effects or impacts of challenged practices. While disparate treatment seeks equal treatment of employees, the ultimate goal of disparate impact is to expand employment opportunities for marginalized groups and to eliminate longstanding racial and gender hierarchies in employment. For this reason, disparate impact theory is often regarded as a structural or institutional theory of discrimination and, by its nature, is group focused. It is also considered to be one of Title VII’s most significant doctrinal innovations, holding out the promise of producing meaningful changes in the patterns of racial and gender stratification in the workplace.
- Although the timing of the new requirements was suspicious, the Supreme Court agreed with the lower courts that there was no showing of discriminatory purpose in the adoption of the requirements, squarely setting up the issue of whether Title VII reached unintentional discrimination. In language that has since become well-known, the Court held that proof of intent was not necessary to establish a Title VII violation, stating that “Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.” As the Court viewed it, the result was “plain from the language of the statute” and mirrored Title VII’s objective of “achiev[ing] equality of employment opportunities and remov[ing] barriers that have operated in the past to favor an identifiable group of white employees over other employees.” ...and yet holds employers liable for limiting, segregating, or classifying employees “in any way which would deprive or tend to deprive any individual of...
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Chapter 13. Procedures and Remedies 95 results (showing 5 best matches)
- is the foundational case setting out the basic principles for determining relief under Title VII. declared that Title VII’s remedial scheme should further the twin purposes of the Act, i.e., (1) the “prophylactic” and primary purpose of achieving equal employment opportunity in the workplace through deterring discriminatory behavior, and (2) the purpose of making persons whole through compensating individual victims of discrimination.
- It is difficult to justify permitting only sexual assault and harassment victims to have their day in court, given the similarity of such disputes to other kinds of employment discrimination cases, e.g., cases involving race or religious discrimination or even other kinds of sex discrimination cases.
- In addition to reasonable attorney’s fees, Title VII also awards costs and reasonable fees for expert witnesses to a prevailing party. Because employment discrimination cases are so time-consuming and expensive to litigate, however, the prospect of an award of such statutory fees is not sufficient for most plaintiffs’ attorneys in the employment discrimination field. They generally will only agree to take on clients on a contingency fee basis to assure that they receive a portion of any monetary relief secured by the plaintiff.
- Given the imbalance of bargaining power between prospective employees and employers, critics of mandatory arbitration have sought to limit its use in the employment context. Initially, the Supreme Court agreed, holding that mandatory arbitration in the employment context would undermine Title VII’s statutorily-mandated judicial enforcement scheme and negatively affect the quality of decision making in anti-discrimination cases. However, the Court later backed away from its negative assessment of mandatory arbitration and completely changed course, hailing the expeditious and “more streamlined” procedures in arbitration and declaring that arbitrators are capable of handling “complex questions of fact and law.” It also stopped regarding mandatory arbitration clauses as a waiver of substantive rights and began viewing them as a mere selection of the forum in which rights are enforced.
- The legal basis for the Court’s change in course was its interpretation of the Federal Arbitration Act (“FAA”), a statute passed in 1925 that was designed to authorize and promote commercial arbitration. The FAA makes arbitration agreements “valid, irrevocable, and enforceable,” subject to a savings clause that preserves generally applicable contract defenses as determined by state law. a 5–4 Court ruled that the FAA did not exempt contracts of employment from its reach, paving the way for the widespread adoption of mandatory arbitration clauses in many industries and sectors. Because the statutory rights were state anti-discrimination claims, the Court also had occasion to rule on the FAA’s effect on state law. Pursuant to the Supremacy Clause of the U.S. Constitution, the Court held that, as a federal statute, the FAA operated not only to limit judicial enforcement of federal claims but also to pre-empt state claims. Because of its powerful impact, commentators have called the...
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Chapter 4. Systemic Disparate Treatment 69 results (showing 5 best matches)
- Once a disparity has been identified, it is necessary for the plaintiff to prove not only that the disparity exists but also that it is probative of intentional discrimination. This is typically accomplished by having a statistician determine the probability that the disparity was due to chance (rather than discrimination). Plaintiffs, of course, will attempt to eliminate chance as an explanation for the disparity, while defendants will attempt to show that the disparity could have resulted from chance and was not the product of discriminatory decisions by the employer. The classic example of flipping a coin is often used to illustrate this aspect of statistical proof in the employment discrimination context. We would expect that, if a coin is fair, there will either be no difference between the number of heads and the numbers of tails or that any observed difference would be due to chance. After all, we know that a coin tossed 100 times will not always yield 50 heads and 50 tails...
- In the course of declaring that the plaintiffs’ proof did not establish a common question of law or fact for the class, Justice Scalia first denied that Wal-Mart could be said to have a “general policy” of discrimination. For the majority, Wal-Mart’s policy of giving discretion to individual store managers simply did not qualify as a policy. Instead, the majority declared that permitting discretion was “just the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy uniform employment practices,” and went on to characterize Wal-Mart’s practice as “a very common and presumptively reasonable way of doing business.”
- Statistical conventions are often used in employment discrimination cases to determine the probability that a disparity of a certain size is due to chance. When the disparity falls well outside the typical or average deviation, as measured by the statistical concept of standard deviation, experts are willing to conclude that something is amiss, or to use the coin example, that the coin is unfair. It is common for experts to reach such a conclusion when an outcome falls more than two standard deviations from what would be expected. In such cases, there is less than a 5% chance that the disparity could have occurred without a correlation between protected group status and the employment decisions at issue. In , the Court endorsed this type of reasoning and noted that “a fluctuation of more than two or three standard deviations would undercut the hypothesis that decisions were being made randomly ...a sufficiently large sample size (i.e., a large enough set of decisions) from which to...
- Justice Scalia’s optimistic view that “surely” managers in companies that have written policies against sex discrimination are likely to make employment decisions based on merit does not comport with s starting point that unexplained disparities are suspect and a “telltale sign” of purposeful discrimination, even if a company professes to make decisions in good faith and has a formal anti-discrimination policy. The difference between the earlier cases and the majority opinion in is the Court’s recent willingness to trust employers not to discriminate and its use of a narrow definition of “intentional discrimination” that covers only open, deliberate forms of bias, excluding bias traceable to unexplained disparities arising from implicit or covert discrimination or judgments based on race-correlated factors not shown to be job-related. In this respect, may jeopardize the ability of systemic disparate treatment theory to hold employers accountable for disparate outcomes in the absence
- Justice Scalia’s insistence that giving discretionary decision-making authority to store managers cannot constitute a discriminatory policy—if carried over to substantive law—could potentially undermine a core feature of systemic disparate treatment theory. At the heart of , after all, is the idea that an employer is responsible for the pattern of discretionary decisions made by its agents (i.e., supervisors and managers) that cannot be explained on neutral grounds. The framework, which allows an inference of discrimination in systemic discrimination cases, presupposes that the employer’s “policy” of discrimination is covert and that it is embedded in a myriad of discretionary judgments, likely to be uncovered only by testing the outcomes of those decisions through rigorous statistical methods. The core assumption is that when there are unexplained racial or other disparities, it no longer makes sense to consider this way of doing business “reasonable.”
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Chapter 6. Harassment 83 results (showing 5 best matches)
- Along with claims for disparate treatment and disparate impact, claims for workplace harassment have become a staple of contemporary employment discrimination law. Although harassment is treated as a form of intentional discrimination and often lumped with other disparate treatment claims, it is best to think of harassment as a separate cause of action, complete with its own distinctive frameworks of proof. The most common form of workplace harassment is sexual harassment and the special doctrines governing harassment claims reflect this linkage. However, courts have also allowed plaintiffs to bring claims on other grounds, including harassment based on race, national origin, religion, age, and disability, as well as claims alleging retaliatory harassment. There may be some variation in the frameworks of proof, however, depending on the type of harassment.
- The second framework of proof, the hostile working environment framework, developed as a residual category and covers all harassment cases that do not culminate in a tangible employment action. Plaintiffs alleging hostile environment harassment must prove (1) unwelcome (2) severe or pervasive conduct (3) based on sex (or another prohibited basis). Additionally, the Court has determined that employers are not always vicariously liable for hostile environments created by their employees. Thus, plaintiffs must come forward with sufficient evidence of (4) employer responsibility. The precise showing required for each of these four elements has been controversial, generating a large number of judicial decisions and constituting one of the most dynamic bodies of employment discrimination case law. A quick comparison of the hostile environment framework to the framework for harassment cases producing a tangible employment action reveals that, under each framework, the plaintiff must prove...
- 42 U.S.C. § 12112(b)(1); Age Discrimination in Employment Act of 1967,
- When Title VII was first enacted in 1964, the term “sexual harassment” had not yet been coined and there was no secure legal remedy for the sexual propositioning, gender baiting, and other forms of sexualized behaviors we now associate with sexual harassment. Born in the 1970s, the claim had a grassroots origin and was only gradually recognized by courts as a form of sex discrimination. Early cases tended to dismiss sexual harassment claims as essentially private disputes that bore little relationship to employment-related injuries, such as lack of equal pay or failure to promote. The lower courts’ negative response stemmed from the belief that harassers were motivated to act out of sexual desire for a particular woman and that their conduct was fundamentally about sex, not work. To some extent, this view of sexual harassment as qualitatively different and more personal in nature than other forms of discrimination has continued to prompt some judges to disfavor claims of sexual...
- , the Court has opted for a broader definition of sex, often repeating the phrase that Title VII was intended “to strike at the entire spectrum of disparate treatment of men and women in employment.” Establishing the link to sex most often requires courts to determine whether the discrimination would have occurred “but for” the plaintiff’s sex, engaging in a counter-factual causal inquiry that tries to imagine what would have occurred if the plaintiff were a member of a different gender. Courts in early sexual harassment cases had little difficulty drawing such an inference of sex discrimination because the cases typically involved a male supervisor and a female target. The presumption of sexual desire on the supervisor’s part—coupled with his presumed heterosexuality—supplied the necessary causal link and the courts reasoned that the sexual advances or other sexual conduct would not have been made if the target were male.
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Chapter 10. Religious Discrimination 78 results (showing 5 best matches)
- Because reasonable accommodation cases dominate the case law, it is easy to forget that some religious discrimination cases will involve the more familiar disparate treatment claim in which an employee is singled out for disadvantageous treatment because of his or her religion, such as an applicant who is denied employment because he is a Muslim. The U.S. Supreme Court has recently declared that both types of claims are properly classified as intentional discrimination, triggering the availability of compensatory and punitive damages and the right to a jury trial. Although the Court also stated that a failure-to-accommodate claim is not a freestanding claim, but merely a species of disparate treatment,
- With respect to the employment of a limited class of individuals, the U.S. Constitution affords religious employers an exemption from anti-discrimination laws broader than the scope of the Title VII exemptions. The ministerial exemption insulates a religious employer who discriminates on any basis, provided the claim involves the treatment of an employee who qualifies as a “minister.” This potent exemption allows religious organizations not only considerable discretion to select ministers free from restrictions, but affords complete freedom to act on the basis of otherwise prohibited characteristics (whether race, sex, age, etc.) in their dealings with these employees.
- Title VII’s principal exemption for religious employers is Section 702(a) that declares that Title VII shall not apply “to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on . . . . of its activities.” Another exemption permits religious discrimination by educational but is largely redundant given the broad scope of 702(a).
- By the terms of the statute, the exemption for religious organizations extends only to religious discrimination and will not shield an employer who discriminates on the basis of race, color, sex, national origin, or other non-religious grounds. Protection for such decisions, if it exists, must be sought through the constitutionally-compelled ministerial exemption. Finally, it is unclear whether the statutory language of the exemption, “with respect to the employment of individuals” reaches beyond hiring and firing decisions and immunizes claims alleging harassment or retaliation.
- Employment Discrimination Based on Religion, Ethnicity or Country of Origin
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Chapter 2. Individual Disparate Treatment 122 results (showing 5 best matches)
- stated that as an African American, Green met the first prong of the prima facie case because he was a racial minority and a member of a protected class. Shortly thereafter, the Court expanded the concept of a protected class and held that whites and other individuals who are not members of traditionally victimized groups are also protected against disparate treatment. When white male employees sue for race or sex discrimination in so-called “reverse” discrimination cases, however, courts have generally modified the The additional “background circumstances” requirement is designed to respond to the notion that, historically, white men as a class have not been discriminated against in employment and thus it makes little sense to suspect that discrimination is the cause of an adverse action whenever a qualified white man is not selected for an employment opportunity.
- When the case reached the Supreme Court, a divided Court endorsed the new mixed motivation model, although no one opinion garnered a majority. Writing for the plurality, Justice Brennan construed the operative language of Section 703(a)(1) that prohibits discrimination “because of such individual’s . . . sex” to mean that “gender must be irrelevant to employment decisions.” plurality, the “because of” language requires that gender be shown to be a factor in the employment decision at the moment it was made. Crucially, this requirement was not synonymous with a showing of “but-for” causation and thus a decision could be said to be made “because of” sex when based on a mixture of legitimate and illegitimate considerations, “even if we may say later, in the context of litigation, that the decision would have been the same if gender had not been taken into account.” The three dissenting Justices disagreed with this interpretation of “because of” and would have required the plaintiff to...of
- As will be discussed in Chapter 9, Title VII has been interpreted to permit some narrowly drawn employer affirmative action plans which have the goal of promoting racial and other kinds of diversity in employment. Thus, decisions made pursuant to affirmative action plans should presumably be immune from challenge by “reverse” discrimination claimants.
- opinion is probably best known for giving rise to what is known as the “stray remarks” doctrine. In her opinion, Justice O’Connor noted that the partners’ comments in the case clearly had been relied upon in making the decision on Hopkins’s candidacy. She went on to contrast those comments to “stray remarks” in the workplace that have no direct bearing on an employer’s decision. The lower courts picked up on this terminology and began to divide biased comments in individual disparate treatment cases (in both mixed motive and single motive cases) into “direct” evidence of discrimination and “stray remarks.” Under the “stray remarks” doctrine, some courts have held, for example, that biased comments are insufficient proof of discrimination unless the comments are “(1) related to the protected class of persons of which plaintiff is a member; (2) proximate in time to the terminations; (3) made by an individual with authority over the employment decision at issue; and (4) related to the
- the Supreme Court ruled that “other employee” testimony by “nonparties alleging discrimination at the hands of supervisors. . . .who played no role in the adverse employment decision challenged by the plaintiff” was “neither was an age discrimination case arising from a reduction in force (“RIF”) in which the plaintiff sought to admit the testimony of five employees from other departments who claimed that they had also suffered age discrimination and were prepared to testify about age-biased comments and other discriminatory behavior by supervisors at the company. The trial judge excluded the evidence, although there was some debate over whether the trial judge used a rule of exclusion. The Court noted that the trial court’s ruling only barred testimony relating to the treatment of the five other employees and would not bar testimony going to the “totally different” question whether the RIF was a pretext for age discrimination.
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Chapter 11. Age Discrimination 41 results (showing 5 best matches)
- George Rutherglen, From Race to Age: The Expanding Scope of Employment Discrimination Law, 24 J. Legal Stud. 491 (1995)
- Two justifications are frequently advanced for making age discrimination illegal. The first, and most important, justification is the danger that widespread use of denigrating age-based stereotypes will deprive older workers of a fair evaluation of their talents and performance. The ADEA’s statement of purpose identifies the goal of promoting the “employment of older persons based on their ability rather than age.” Even though old age may, in some cases, lead to physical deterioration or a disability that prevents an individual from performing certain tasks, it is inaccurate and unfair to assume that advanced age itself makes a person a less valuable employee. In a leading case, the Supreme Court declared that “[i]t is the very essence of age discrimination for an older employee to be fired because the employer believes that productivity and competence decline with old age.” ...discrimination has been proven, courts thus often look to see whether an employer has relied on “...
- Beyond challenges to explicit age-based employment policies, ADEA plaintiffs have also brought systemic disparate treatment cases alleging that employers have engaged in a pattern or practice of covert age discrimination. Like Title VII systemic disparate cases, the heart of such claims is a statistical analysis of the employer’s treatment of older employees compared to its more favorable treatment of younger employees. Plaintiffs frequently combine this statistical showing with anecdotal evidence of age discrimination against individual plaintiffs. A good example of such a case is challenging a RIF conducted as part of a dramatic downsizing of a large corporation. The plaintiffs’ statistical case indicated that the termination rates for employees aged 40 or older were generally higher than for workers under 40, e.g., the termination rates for workers under 40 ranged from 6.2% to 9.9%, while the rates for workers over 40 ranged from 9.5% to 26.3%, with the highest rate occurring in...
- The differing frameworks of proof for ADEA and Title VII individual disparate treatment claims create special complexities in cases of intersectional discrimination. Because of , cases involving both age and sex discrimination, where, for example, the plaintiff claims that the employer discriminated against older women now necessitate two different sets of jury instructions mirroring the differing causation and liability standards under the two statutes. Nevertheless, at least one circuit has endorsed a “sex-plus-age” discrimination claim after , allowing the plaintiff to treat age as a plus factor in the sex discrimination suit over the defendant’s objection that such framing was an attempt “to circumvent the requirements of the ADEA.” The court recognized that older women are subjected to “unique discrimination resulting from sex stereotypes associated with their status as older women” and that such discrimination was “not merely a manifestation of ‘stronger’ age discrimination”...of
- The Age Discrimination in Employment Act (“ADEA”) is a separate anti-discrimination statute that provides protection against discrimination based on age. Enacted in 1967, only three years after Title VII, the ADEA’s main substantive provisions track the wording of Title VII and initially courts tended to interpret the statutes uniformly. Like Title VII, the ADEA authorizes disparate treatment, disparate impact, harassment, and retaliation claims. However, the two statutes are not identical: the ADEA has special defenses and provisos as well as its own distinctive remedial scheme. Moreover, when Congress passed important amendments to Title VII in the 1991 Civil Rights Act, it did not simultaneously amend the ADEA, prompting courts to declare additional differences in the scope of protection between the two statutes.
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Chapter 3. Retaliation 47 results (showing 5 best matches)
- Like claims of disparate treatment, retaliation claims require a showing of adverse action. However, retaliation complaints do not invariably challenge punitive actions that affect an employee’s employment status or even a condition of work. To give a hypothetical example, it is possible that in retaliation for an employee’s complaint of discrimination, a vindictive employer might put pressure on an admissions director of a local private school not to accept the employee’s child, hurting the employee in a realm outside of employment.
- Retaliation claims are closely related to discrimination claims and play a central role in the enforcement of Title VII and other anti-discrimination laws. They function to protect employees from being punished for complaining about discrimination in their workplaces or suffering harm as a result of asserting their rights. In a complaint-driven regime such as Title VII, it is essential to provide assurance to employees that they will not lose their jobs, be demoted, or be otherwise disadvantaged if they act pursuant to the remedial structure set up for them under the law. For this reason, many see protection against retaliation as a tool of law enforcement in addition to its role in protecting individual rights. It is such a crucial part of civil rights enforcement that the U.S. Supreme Court has ruled that plaintiffs have an implied right to be free from retaliation, even in those instances in which the underlying legislation makes no mention of retaliation, e.g., in claims brought...
- The U.S. Supreme Court addressed the definition and scope of the adversity requirement in claimed she was demoted and subsequently suspended for complaining about sexual harassment by her supervisor. Even though the case involved work-related retaliation, the Court pointed out that Title VII’s anti-retaliation protection is broad enough to encompass actions that do not affect the terms and conditions of employment. The Court reasoned that without such broad protection the Act could not achieve its purpose of eliminating employer interference with an employee’s efforts to secure enforcement of Title VII’s anti-discrimination guarantees. The Court thus distinguished the adversity requirement for retaliation from the “tangible employment action” requirement that is used as the basis for imposing vicarious employer liability in harassment cases.
- As the language of the statute suggests, participation conduct potentially covers a range of activities associated with the adjudication of discrimination claims, including filing an EEOC charge or a lawsuit, testifying in court or at a deposition, or submitting an affidavit to the EEOC or state fair employment agency. The prohibition on employer interference with participation conduct extends beyond the employee who has filed the charge or lawsuit to protect co-workers who provide assistance to a litigant, making it unlawful, for example, for an employer to promulgate a rule barring employees from cooperating in Title VII investigations without prior supervisory approval.
- some courts took a strict view that plaintiffs who complained about discriminatory behavior could not satisfy the reasonable belief standard if their complaints appeared to allege sexual orientation discrimination as opposed to sex discrimination. Such a result would clearly be wrong now that sexual orientation discrimination is regarded as sex discrimination and is covered under Title VII. However, the strict view still finds expression in some cases in which courts reject plaintiffs’ retaliation complaints because the underlying sexual behavior does not technically amount to a Title VII violation, for example, in sexual favoritism cases that fall outside the recognized boundaries of “sex” discrimination.
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Chapter 12. Disability Discrimination 82 results (showing 5 best matches)
- With respect to disparate impact discrimination, the text of the ADA goes into somewhat more detail than Title VII and provides that disparate impact claims may challenge the use of “standards, criteria or methods of administration that have the effect of discrimination on the basis of disability” or the use of “qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities . . . .” Like Title VII, however, disparate impact discrimination may be justified by a showing that the challenged practice is “job-related for the position in question and is consistent with business necessity.” a direct threat to the health and safety of other individuals in the workplace.”
- Under the ADA, qualified individuals with disabilities are protected against various types of discrimination, including disparate treatment and disparate impact discrimination. The ADA reaches beyond Title VII by explicitly providing that associational discrimination, as well as the failure to provide a reasonable accommodation, also constitute discrimination.
- The ADA disparate impact provisions prohibit qualification standards or other selection devices that screen out or tend to screen out disabled individuals, reaching even unintentional barriers to employment. The provision applies to a variety of selection criteria, including safety requirements, vision and hearing requirements, walking requirements, lifting requirements, and employment tests. Similar to Title VII, such discriminatory qualification standards may be defended and justified by the employer by showing that they are “job-related and consistent with business necessity.” Additionally, because the ADA’s protection against disparate impact discrimination must also be interpreted in conjunction with the duty to provide reasonable accommodation, the regulations state that in disparate impact cases the employer must also prove that the performance of the excluded individual “cannot be accomplished with reasonable accommodation.”
- The Americans with Disabilities Act (“ADA”) protects persons with disabilities against discrimination and requires employers to provide reasonable accommodations for such employees. First enacted in 1990, the ADA greatly expanded coverage of its predecessor, the Rehabilitation Act of 1973, which had reached only discrimination against federal workers and employees of federal contractors. Title I of the ADA was enacted as part of comprehensive legislation covering private and public employers that prohibits disability discrimination in a variety of contexts, including discrimination in public accommodations. In 2008, Congress enacted major legislation amending the ADA (“ADAAA”) in response to several decisions by the U.S. Supreme Court that had narrowed the ADA’s scope. The principal objective of the 2008 amendments was to override the restrictive judicial interpretations and to enlarge the category of protected persons.
- The ADA also expressly prohibits a form of disparate treatment discrimination not mentioned in other anti-discrimination statutes, i.e , discrimination based on a qualified plaintiff’s association with a disabled person. One court has grouped these associational discrimination cases into three types: (1) “expense” cases, in which an employer believes that a plaintiff’s association with a disabled person will generate insurance costs; (2) “disability by association” cases, involving employer fears that an employee will contract a disease from a person with a disability or is genetically predisposed to develop the disability of the associated person; and (3) “distraction” cases, in which an employer fears that the plaintiff will be unproductive at work due to concerns about the disabled person. ...that protection against associational discrimination does not include the right to a reasonable accommodation and thus an employer has no duty, for example, to restructure an employee’s...
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Index 119 results (showing 5 best matches)
Chapter 7. Sexual Orientation and Gender Identity Discrimination 30 results (showing 5 best matches)
- In addition to protection under Title VII, legislation in more than half the states and hundreds of municipalities expressly prohibits discrimination based on sexual orientation and/or gender identity. As in other areas of the law, plaintiffs may wish to proceed under state statutes for a variety of reasons, including more favorable procedural and remedial schemes.
- set the tone of the early cases. Dismissing claims brought by a group of gay and lesbian plaintiffs alleging discrimination in hiring, termination, and harassment, the Ninth Circuit rejected a variety of theories, relying on the lack of congressional intent to provide protection. Tellingly, all the arguments that would prove successful in courts decades later were made by the theories that effectively equate sexual orientation discrimination to sex discrimination in all cases, the court brushed off the plaintiffs’ “but-for” causation argument that discrimination on the basis of a plaintiff’s sexual preference in sex partners amounts to sex discrimination because “if a male employee prefers males as sexual partners, he will be treated differently from a female who prefers male partners.” Similarly, the court ruled against the plaintiffs’ sex associational theory that would have prohibited discrimination against an employee based on the sex of his intimate friends or associates,
- The legal landscape of protection for LGBT individuals fundamentally changed in 2020 when the U.S. Supreme Court held in that discrimination based on sexual orientation and gender identity fell within the scope of Title VII’s ban on sex discrimination. The constitutional right of same-sex couples to marry had been recognized five years earlier and many lower federal courts had deployed a variety of legal theories to afford some protection against LGBT bias. Yet came as somewhat of a surprise to many commentators, representing one of the few victories for employees emanating from the highly conservative Court. The decision has finally afforded gay, lesbian, and transgender employees the same kind of formal equality given to other “protected groups” at a time when there is still considerable resistance to LGBT rights, especially from some religious groups. This long struggle for inclusion is an example of how changing judicial interpretations of the broad language of Title VII can...
- Until quite recently, a strict separation was maintained in the case law between “sex” and “sexual orientation,” reserving the latter term to refer to a person’s erotic or affectional attraction toward members of one’s own sex, the other sex, or both sexes. Even though, in the mindset of the early cases, the defining feature of being gay or lesbian turned on the sex of one’s intimate partner, such connection to sex was regarded as insufficient to bring discrimination against gays and lesbians within the ambit of Title VII.
- , the formal, textual argument was reinforced by arguments based on sex stereotyping and associational discrimination. The courts regarded claims involving discrimination based on sexual orientation as representing “the ultimate case of failure to conform to gender stereotypes,” and took the position that associational discrimination based on the sex of one’s intimate partner was actionable, citing cases in which plaintiffs had prevailed when employers targeted them for being in interracial marriages or relationships.
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Summary of Contents 40 results (showing 5 best matches)
Table of Contents 53 results (showing 5 best matches)
West Academic Publishing’s Emeritus Advisory Board 14 results (showing 5 best matches)
- Dean & Professor of LawUniversity of Maryland Carey School of Law
- Professor of Law Emeritus, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
- Arthur J. Kania Dean and Professor of LawVillanova University Charles Widger School of Law
- Professor of LawUniversity of Houston Law Center
- Professor of Law, University of Houston Law Center
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Table of Cases 129 results (showing 5 best matches)
- Corporation of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 226
- Chicago Teachers Union, Loc. No. 1 v. Bd. of Educ. of City of Chi., 277
- EEOC v. Bd. of Regents of the Univ. of Wis. Sys., 236
- Association of Mexican-Am. Educators v. State of California, 107
- Berry v. Bd. of Supervisors of L.S.U., 174
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Copyright Page 2 results
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- Printed in the United States of America
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- Publication Date: May 3rd, 2023
- ISBN: 9781636592817
- Subject: Employment Discrimination
- Series: Concise Hornbook Series
- Type: Hornbook Treatises
- Description: This Concise Hornbook explains the intricate doctrines and frameworks of proof that courts have developed in interpreting federal employment discrimination statutes. It provides in-depth treatment of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA). Designed for use by law students, scholars, and practitioners, the book identifies the critical elements of disparate treatment and disparate impact theory and proof requirements for claims of harassment and retaliation. Separate sections address distinctive issues relating to race, national origin, and religious discrimination as well as pregnancy and caregiver discrimination, pay equity suits and discrimination based on sexual orientation and gender identity. The book examines U.S. Supreme Court precedents and developments and trends in the lower courts.
