Glossary of Employment Discrimination
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- Slack v Havens
- Δ says that he is assigning the job to the ∏’s because blacks clean better.Clear evidence of intent
- PF case for IDT
- 1.∏ IS A MEMBER OF THE PROTECTED CLASS
2.APPLIED FOR AND WAS QUALIFIED FOR AN OPEN POSITION
4.POSITION REMAINED OPEN
- What is the result of the PF case of IDT?
- PF case creates a mandatory, rebuttable presumption of unlawful motive
- What burden shifts to the D when the PF case is made?
- Burden of Production to produce a legitimate non-discriminatory reason
- Does the reason have to be legal?
- No. Hazen Paper v Biggins.
- Hazen Paper v Biggens-
- Vesting of pension benefits is an analytically distinct reason for firing then age, and violation of ERISA does not = violation of the ADEA
- If the LNDR is analytically distinct from the D reason can the P still recover?
- Yes by showing that the analytically distinct reason is mere proxy for the D reason
- Does the LNDR have to be true?
- Probably not as long as the D held a good faith belief that it was true. EEOC v Sears Roebuck- Even though court rejects the LNDR that the ∆ thought the that the ∏ had been accused of SH, they note that if the ∆ had reasonably believed that the ∏ was the person then they would be ok here.
- O'Connor V COnsolidated Coin-
- SCOTUS says that a ∏ only has to show the inference that the ∆ took the action based on the protected status. It does not matter that the person who took their place was also in the protected class. The difference in age has to be a significant amount. Also said that the MD framework may not apply in the ADEA arena.
- What happens when the D offers a LNDR?
- v. At this time, the rebuttable presumption drops out and the ∏ has the burden to persuade EITHER
The proffered reason was not true OR The proffered reason was not the real reason
- How can a P show that the proffered LNDR was not the real reason for the action?
- i. Comparators who were outside the class who were treated differently. Pattern of discrimination With the ∏ and with other workers
- McDonald v Santa Fe Trail Transport Co-
- COurt held that Whites are covered by Title Vii. Legislative history, the wording of the statute and EEOC decisions all point to the idea that Title Vii is meant to apply to all races-Case succeeds even when the ∏ is not able to make out an MD case
- General Dynamics v Cline-
- Younger workers can not sue based on D in favor of older workers. ∆ decided to continue to offer pension only to people who were over 50.
1. Court holds that the ADEA was not meant to apply to younger workers who were D’d against. Social history of the statutes clearly pointed to fears that older workers were being D’d against not that 40 year olds were being D’d against in favor of older workers. Term Age is not the same as sex/race in that it can be read in multiple ways in differing places of the statute. Can mean chronological age and also old age. Statute was not ambiguous so there is no need to defer to the EEOC’s judgment in the case.
- Scope of race/national origin in Title Vii and 1981-
- Definition of race in 1981 looks a lot like the definition of national origin that is used in Title Vii. This is important b/c race is not allowed a BFOQ while national origin is allowed one
National origin is commonly defined as where you are born/where your ancestors are from.
- Patterson v McLean Credit Union
- The Court cannot limit the type of evidence a complainant may offer to show that an employer’s reasons for a disparate treatment claim were a pretext. - Court gives a JI that the ∏ can not recover unless they show that they were the most qualified person for the job. Court rejects this- The real issue in this case is whether the ∆ D’d based on race, not whether they hired the most qualified person. This is a LNDR, but there is more than one way to refute the LNDR-∏ could show that historically the company never promotes people OR that they were better qualified
- How much of a difference in qualifications must be shown to infer that D played a role?
- Something less than a slap in the face. Probably that a reasonable person would say that the P was better qualified. Ash v Tyson
- Who retains the burden of persuasion that the action was based on D?
- The P. Even if the ∏ is able to refute all of the ∆’s reason for taking the action, they still must persuade the court that the ∆ took the action based on a protected status.
- St Mary’s Honor Center v Hicks
- Scalia says that rebutting the LNDR is not enough to win. P still has the burden to persuade the court that the action was based on D.
- What happens to the evidence that made up the PF case once the D offers a LNDR?
- Court can find that the combination of the PF case and the refutation of the LNDR’s is enough to find D. It is not necessary for the court to ignore the PF facts or for the ∏’s to put forward more evidence if the court is persuaded.
- Reeves v Sanderson plumbing-
- ∏ is fired after working for the ∆ for a long time for problems with his bookkeeping and his failure to fault people for not showing up. SCOTUS holds that the COA was misreading St Mary’s to require a showing of pretext plus in every case-In some instances the PF case and the refutation of the LNDR’s will be enough to infer D. Not true if the facts show that some other reason than D or the LNDR was used
- What is the standard for causation in traditional IDT cases?
- But for-
- Mt Healthy City Schol Board of Education v Doyle
- Teacher claims that was fired in violation of 1st Amendment rights. Crt address issue of causation – the protected conduct was a substantially motivating factor in the decision to fire – that’s at least enough to show that firing was illegal. Then employer has to show by preponderance of evidence that other reasons motivated firing
- Price Waterhouse v Hopkins-
- Pluarality finds- Once the ∏ shows that the ∆ took sex into account it is up to the ∆ to show that it would have taken the action no matter what. Burden shifts to the ∆ to show this, but if it can it avoids liability.
- O'Connor Concurrence in PW
- P must show direct evidence that the D took the protected class status into account(must be a substantial motivating factor)
in order to get into mixed motive land
- Lingering discussion of PW?
- The court’s discussion of sex stereotyping and unconscious D. Sex stereotyping can give rise to a claim, but there is debate as to whether the court can consider unconscious D
- Section 703(m) response to PW
- Must show that the protected class was a MOTIVATING FACTOR (vs a just took it into account in PW) in order to get the mixed motive AD. IF the D can show that they would have taken the action anyway then they will owe a lot less in damages(no punitives)
- DOes the P have to show direct evidence in order to get the mixed motive instruction?
- NO. see Desert Palace v Costa.
- Desert Palace v. Costa-
- ∏ is fired after getting into a fight at work. She was the only women in the unit and was subjected to a lot of crap from employees. Her evidence of D was only circumstantial.Thomas opinion- After PW there may have been a requirement of direct evidence. 1991 amendment abrogated this decision. The language of the statute and the historical reliance on circ evidence to show Title Vii violations show that Congress intended for 703(m) to apply to all cases regardless of the evidence offered
- When can the motive of one person be imputed to the employer?
- Decisions by a board-Sometimes one persons vote can taint the whole process enough to make discrimination a motivating factor.
In a hierarchical model, the person lower down on the chain can influence the decision higher up by skewing data, or by the higher up just rubber stamping the recommendation. Even if the P can not prove that the lower down's actions were not the motivating factor, the evidence is admissible, although not sufficient
- White's article on multiple decision makers-
- Instead of asking if the ultimate decision maker intended to discriminate, you must look to see if there is an unbroken chain of causation that reaches from the person's protected class status, and the challenged decision. IDT should be recognized so long as the cause came from the employer
- What do Systemic disparate treatment cases still require?
- A showing of intent on the part of the D
- Two ways to get to systemic disparate treatment
- a.Facially discriminatory policy-
b.Pattern of behavior that leads to D
- Facially Discriminatory policy
- A policy will not be facially discriminatory if it will not exclude all/majority of a protected class
- LA Dept of Water & Power v Manhart
- ∆ made women pay more for their retirement b/c on a whole women live longer than men. SCOTUS rejects this practice: The statute contemplates individuals and the decision made by the employer is based on a comparison of class characteristics. Insurance is always based around a group of people subsidizing other people who cost more. There is no cost justification defense for DT
- TWA v Thurston
- TWA allows pilots under 60 to get a bump and move into flight engineer when they get close to the retiring age set by the FAA, guys over 60 have to bid.
i. No need to show BFOQ for the mandatory retirement policy, it is allowed by the statute
ii. Policy is facially D, so the fact that there were no openings does not matter. ∏ does not have to make out MD case when their is direct E of D. BFOQ is for the pilots so this is not a defense for not allowing people to get a bump in flight engineers, and the seniority system is not bona fide b/c it is facially D
- What should you do when you see that there is a facially D policy?
- Start looking for an exception or a defense or you are out of luck
- How do the majority of SDT cases get proven?
- A statistical showing of an imbalance in the workforce
- What is the comparison in SDT cases?
- The % of the protected class who work for the D to the % of them in the relevant labor market
- What is the appropriate area for finding the relevant labor market?
- The lower paying/less skilled the job the smaller the area that the job will draw for. Higher skilled jobs will have larger markets
- Who can act as comparators in finding the relevant labor market?
- For unskilled jobs the appropriate comparison is the general population. For skilled jobs you need specific numbers
- Teamsters v US
- ∆’s are charged with failing to hire promote blacks/latinos to driving positions. Court holds that the statistics combined with the specific instances of D are enough to get to D by the ∆.
- ONce the COurt finds D in a SDT case what must people do to recover?
- Individuals need to come forward and show that they applied for the job.Once they show this the BURDEN OF PERSUASION shifts to the ∆ to show that they would not have hired the ∆ for a legitimate reason.
- Hazelwood V US-
- - School district had low numbers of AA’s working there. US filed suit for SDT. DC said that there were not a lot of AA students so the numbers were not significant
1. Court rejects this, the number of black kids does not affect the relevant labor market
2. Real fight in the case is over the numbers to use in order to determine if there is a statistical significance to the disparity.
- HOw much is enough in a SDT case?
- 2-3 Standard deviations is enough to get to a significnant number= Number high enough that it is unlikely that it occurred by chance
- HOw else could the D in Hazelwood have won besides attacking the relevant labor pool?
- ∆ could still win by showing that the number hired was limited by other things-St louis had an AA program and is there a diversion based on this
- Bazemore v Friday-
- DC refused admission of statistical evidence b/c it reflected salary figures based on pre-act figures and did not factor into differences in pay between counties. Court says that failure to include some variable will only decrease the probativeness of the E, not the admissibility of the E. Pre-act pay was probative b/c there was no change in the amount that the employers paid
- Three ways to defend a DT case-
- Challenge the factual basis on which the case is based. Challenge the inference of D that is raised by the P's case.Admit the D and then offer an exception to liability
- Is it enough to say that the staistics offered by the P failed to take certain things into account?
- There is a SOA on whether it is enough to say that the stats failed to take into account a factor. Some courts require the ∆ to recalculate the stats with the forgotten factor and show that the new stats do not reflect statistical significance
- In a DT claim is it enough to show that the D acted with knowledge that discrimination would likely result from its policy?
- No, the P must show that the D acted b/c of the likely discriminatory result
- Personnel Administration v Feeney-
- - Court upholds a law that gives preference to veterans despite the fact that it led women to be blocked from getting some state jobs. State was not ignorant as to the effect of the law, but this does not mean that it intentionally D’d, State actually applied the statute to all persons and interpreted the definition of Veteran broadly to include women. Because this was a con case it had to intentional, there are no impact claims under the Con. This is not a problem under Title Vii, b/c the statute specifically exempts veteran preference laws
- Is it necessary to rebut statistical evidence with more statistics?
- NO, The D can undercut the assumptions that underly the stats.
- EEOC v Sears Roebuck-
- - Lower number of women in pool of commission salesmen. Applicant pool is 60/40 female/male, while the commission sales people are 75/25 male/female. Sears rebuts the stats with general interest evidence. Women are just not interested in these jobs. Can’t use stats b/c this kind of thing is not quantifiable. Must show that the jobs are different so women do not want the jobs and this is why there is a statistical difference
- EEOC v Miniature Lamp Works
- ∆ explains away a lack of blacks in the workforce by pointing out that the people who work there do not have to speak English. Leads to a large # of Asians and Hispanics applying there.
- When can the D argue a BFOQ?
- Sex, religion, age, national origing and disability. NO BFOQ in race cases.
- Two Requirements of the BFOQ-
- 1. The aspects of the job for which sex, religion, national origin and age are claimed to be necessary MUST BE THE ESSENCE OF THE EMPLOYER’S BUSINESS.
2. All or substantially all members of the excluded group can not perform the job OR it is impractical or impossible to deal with the excluded group on an individual basis
- Will the court consider risk to third parties in BFOQ cases?
- Yes, in some circumstances
- Dothard v Rowlinson-
- - ∆ used a height/weight cut off that screened out more women than men. Court holds that using national statistics to determine if there would be a DI is ok. No reason to think that the AL stats would be any differeNT. Also the employer can test strength directly
- Western Air Lines v Criswell
- - Court strikes down a mandatory retirement age for pilots that was based on fears of passenger safety based on the health of the pilot. Employer could give physicals to their pilots
- IS there a BFOQ for potential danger to self under Title Vii?
- Probably not. See Johnson Controls
- International Union, UAW v. Johnson Controls
- Employer refuses to allow women to work on the battery making line b/c women have a 20% likelihood of having a baby with birth defects if they are exposed to the batteries during pregnancy-Court says that there is no BFOQ here-Essence of business was making batteries not making batteries in an atmosphere that was safe to potential human fetuses-
Specifically rejects the reasoning that this will open them up to tort liability-There is no cost justification defense to DT
- Has the court addressed privacy issues in relation to a BFOQ?
- When will an AA plan be an effective defense to revers D cases?
1. The plan was court ordered OR if voluntary enacted
1. The plan is implemented to remedy a manifest imbalance in a traditionally segregated job category AND It does not unnecessarily trammel the interests of the majority group
- Divergence of DP analysis from Title Vii in AA Cases.
- Under the Con there must be remedial evidence, must show a history of D. Court uses strict scrutiny test-Diversity is an acceptable compelling government interest. Gratz v Bollinger- Undergrad admissions program was not sufficiently narrowly tailored. Gave an automatic 20 point bump to minorities. Grutter v Bollinger-Law school's diversity program was ok b/c it looked to all of the qualifications of the applicants and not just the race
- Johnson v. Transportation of Santa Clara
- Women had traditionally not been part of the skilled trade group and the city set long term goals to increase the # of women in the department. Following this goal, they passed over a man to hire an essentially equally qualified women. Court upholds the action-No history of D, but the court does not care. Here there is a manifest imbalance ( 0 women in the job). Also, the ∏ ended up getting the next promotion so his rights were not trammelled
- Disparate impact rule of thumb?
- If the success rate for the group is less than 4/5ths of the selection rate for the group with the highest selection rate, then there likely is an actionable impact
- What must a person do in order to identify a DI?
- THey must identify the particular practice that causes the impact unless they can prove that the elements of the employer's decision making process are incapable of separation
- What happens once a P shows that an impact exists?
- THE BURDEN OF PERSUASION SHIFTS TO SHOW THAT THE CHALLENGED PRACTICE IS
Job related for the position in question AND
Consistent with business necessity
- Griggs v Duke Power Co
- - ∆’s required a high school diploma to get the job. ∏’s allege both DT and DI( They lose on the DT claim for a lack of intent). Court rules that even absent a showing of intent the ∏ can recover if the requirement is not necessary to the performance of the job.
May have reflected dissatisfaction with the lower courts finding of no intent to D
- Wards Cove Packing Co v. Antonio-
- Statistical evidence comparing an employer’s practice of hiring nonwhite workers in one position to a low percentage of such workers in other position does not establish a prima facie case of disparate impact of employer’s policies in violation of Title Vii. Court also finds that the ∆ only has a burden of production to show that the practice does not cause the impact and that the burden of persuasion stays on the ∏. This is overruled by the 1991 amendment to Title Vii-
- 1991 amendment in reference to DI
- An unlawful employment practice based on disparate impact is established under this subchapter only if—
(i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or(ii) the complaining party makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice.
- What happens if a P can not separate the employment practices of the D?
- If the complaining party can demonstrate to the court that the elements of a respondent's decisionmaking process are not capable of separation for analysis, the decisionmaking process may be analyzed as one employment practice.
- Is DI available for an employer who uses subjective interviewing criteria?
- Yes, see Watson v Fort Worth
- Watson v. Fort Worth Bank & Trust
- - ∏ is denied promotion three times based on subjective criteria.
Court holds that DI analysis is applicable for subjective practices, otherwise employers would get rid of requirements and go to all subjective criteria + unconscious D may affect the hiring choices
- Is there a bottom line defense to DI?
- Connecticut v Teal
- ∆’s realized that their test screened out more blacks so they intentionally hired more blacks in order to get their numbers right.Court held that this was not enough-Focus in the statute is on the individual, Title Vii strives for equality of opportunity not for an appropriate end result
- NY Transit v Beazer-
- ∏’s claim that a no methodone user has a DI on blacks and latinos b/c large portion of those accused of drug use are black-
Court rejects this approach and looks to the number of people who actually applied for the job
- Espinoza v. Farah Mfg Co-
- ∆ is able to rebut a claim of DI against people born outside the US b/c of a citizen only rule by showing that 96% of the people working in the factory were Mexicans.
- UNder the 1991 amendment to Title Vii does a D have to show that an employment practice is a business necessity if they can demonstrate that there is no impact?
- Lanning v. Southern Pa Transportation Authority-
- Subway cop fitness test. Court says that in order to be consistent with BN the CUTOFF SCORE must measure the minimum qualifications necessary for successful performance of the job in question
- Defenses to disparate impact-
- Bona Fide Seniority system,
- Elements of proving a BFSS
- 1. D can show that the SS is a product of a collective bargaining agreement.
2. Employer proves that the practice is a traditional component of a SS
3. P's surrebuttal that the operation of the SS is the product of intentional disparate treatment D
- California Brewers Assn v Bryant-
- Had to work 45 weeks a year to be a permanent hire-NO blacks had ever been there. Court held that in order for the seniority system to work it had to have some ancillary rules that operate on a different framework then length of service. This rule was ok.
- Four factor test to determine if a SS is bonafide
- a. Whether the seniority system operates to discourage all employees equally from transferring between seniority units
b. Whether the seniority units are in the same separate bargaining units ( if the latter, whether that structure is rational and in conformance with industry practice
c. Whether the seniority system has its genesis in racial discrimination
d. Whether the system was negotiated and has been maintained free from any illegal purpose
- Is Di available under the ADEA?
- Yes, see Smith v City of Jackson
- SMith v City o Jackson-
- DI is available for ADEA but since 1991 did not apply to ADEA so the court should use the analysis from Ward's Cove. D just needs to show that the business practice was reasonable. If it was reasonable then there is no need to show business necessity, even if there was another method that would have avoided the impact.
- Raytheon v Hernandez
- Cout says that a no rehire rule does not have a DI (bc the claim is barred) so it has to operate as a LNDR, also that a person must have notice of the disability in order to have the intent to act
- Does Title Vii apply to partners?
- Not true partners. THe court will determine if the person is a true partner
- THings to look for to decide if a person is a partner or an employee
- Can they be hired or fired
Does the individual share in the profits or losses-
What was their intent?
- Hishon v K & S
- If being eligible for partnership is considered a term, condition or privilege of employment then that consideration must be done in a non-D way
- Sibley Memorial v Wilson
- Court allows a nurse to sue a hospital that is not his employer. 1. Court states that Title Vii prohibits D by an employer against an individual and that the hospital’s actions were actionable b/c they interfered with an individuals employment opportunities with another employer
- Pregnancy Discrimination act
- - Amended Title Vii so that discrimination based on P would be considered sex discrimination- 2 parts
1. D on the basis of pregnancy, childbirth and related medical conditions is sex D
2. Women affected by pregnancy, childbirth and related medical conditions SHALL BE TREATED THE SAME FOR ALL EMPLOYMENT PURPOSES, INCLUDING FRINGE BENEFIT PLANS, AS OTHER PERSONS SIMILARLY ABLE OR UNABLE TO WORK
- California Federal Savings v Guerra
- TItle Vii sets the floor for protection of pregnant women, so Ca law reuqiring companies to allow maternity leave is not preemted by federal law
- DOes application of a neutral policy that affects pregnant women sex D?
- Probably not
- Marafino v St Louis-
- Court said that it was ok not to hire a pregnant women who would need a long leave soon after being hired. Employer would not have hired anyone who needed along leave
- Can the employer take the source of the injury( pregnancy) into account when it is applying its neutral policy?
- SOA on this one.
a.Ensley-Gaines v Runyon- 6th circuit said that denying light duty to a pregnant women b/c the source of the light duty was not work related violated the PDa
b.Urbano V Continental Airlines- Employer could take the source of the injury into account-
- Newport News Shipbuilding V EEOC-
- Employers may not give married male employee’s spouses a benefit package that is less inclusive than the dependency coverage provided to married female employees
- Is termination of a pregnant employee because they are about to take a leave violative of the PDA.
- Not necessarily. See troupe.
- Troupe v May Dept Store-
- Employer fires a women soon before she would leave for the baby-Court says that standing alone this is not D under the act. ∏ was late/absent often and if the employer would have fired a man with a similar record who was about to take the leave then this is ok
- Maldonado v US Bank¬-
- 7th Cir said that an employer could not fire s a pregnant women b/c her due date would fall in the busy season of the year without a good faith basis, supported by strong evidence, for thinking that the noraml inconveniences for pregnancy would need special treatment-
This was an anticipatory action-
- Two things to show to find a QPQ claim.
- a.Unwelcome sexual advance
b.Causal nexus between the advance and the job decision
- HWe standard
- Unwelcome conduct must be sufficiently severe or pervasive so as to alter the conditions of the victim’s employment and create a hostile work environment
- Does there need to be tangible economic loss to win on a HWE claim?
- no. See meritor
- Meritor v. Vinson-
- ∏ engaged in occasional consensual sex with the ∆ but also claimed that she was harassed even raped by her boss. ∆ argued that unwelcome sexual advances do not violate Title Vii if they do not have a tangible effect
1.Scotus says that psychological harms count
ii. Voluntary sexual behavior can still be D the important thing to look at is whether the advances were unwelcome.
iii. Also important that the HWE is so pervasive that it effects the terms and conditions of employment
- Does the behavior have to be sexual in order to be sex D?
- no. it has to be b/c of sex
- Oncale v Sundowner Offshore-
- DC/COA reject a claim of sex D when the ∏ and ∆ are the same sex. SCotus overrules
i. Nothing in Title Vii bars this. The ∏ is still being D’d against.
ii. Can he recover b/c he is an effeminate man?
1. PW and gender stereotyping
2. Lower courts have rejected sexual orientation as a basis for b/c of sex
b. However in an overtly sexual case there is more of a presumption that it is b/c of sex
- Decintio v Westchester County Medical Center-
- Title Vii is not implicated when a boss promotes his girlfriend over guys-
- Burns v. McGregor-
- Court says that the lower court was wrong to consider the fact that the ∏ had posed naked outside the workplace in order to determine if they would think that the conduct is unwelcome.What happens outside of work does not affect whether the conduct was welcome-Could be different if the ∏ had brought in the magazine. Could have opened the door
- Is the pervasive/severe analysis for HWE subjective or objective?
- Both. Conduct must be severe or pervasive enough that a reasonable person would have found it hostile ANd The victim themselves must find it to be hostile-
- Factors to look for in finding a HWE-
- How often?
b.Is it physically threatening? Courts will look to these more harshly
c.Does it interfere with work performance?
i.EEOC test- Would a reasonable person find it more difficult to perform their work
- Harris v Forklift
- -∏’s boss makes a lot of remarks about sex. She asks him to stop, he does for a while, then starts up again. She quits and sues. ∆ defends claiming that the harm did not rise to the level of psychological harm so there is no HWE- SCOTUS disagrees with this standard-The harm does not have to lead to a nervous breakdown
Must be pervasive or severe enough to create an objectively hostile work environment-
Victim must perceive this to be pervasive/severe-Here the DC dismissed when there was no showing of breakdown, so it should be remanded for a determination of the obective/subjective test-
- what is the test for employer liability when it comes to the actions of customers/third parties/co-workers for HWE
- The court looks to see if the employer knew or should have known about he harassment
- Burns v. McGregor
- - Court says that the lower court was wrong to consider the fact that the ∏ had posed naked outside the workplace in order to determine if they would think that the conduct is unwelcome.
a. What happens outside of work does not affect whether the conduct was welcome-
i. Could be different if the ∏ had brought in the magazine Could have opened the door
- Is it a subjective or objective analysis to get to pervasive and severe?
- Both. Conduct must be severe or pervasive enough that a reasonable person would have found it hostile AND The victim themselves must find it to be hostile-
- What is the standard for employer liability for co-workers, third parties, or customers.
- As far as co-workers, customers or other third parties the court looks to see if the employer knew or should have known about he harassment
- In order to get respondeat superior what must the supervisor be doing?
- Acting in their capacity and in the interests of the company
- Three ways to get to employer liability when they are not acting in the interest of the employer
- 1.Did they intend the conduct?
2.Did they know or should they have known about the behavior?
3.Did the supervisor purport to speak or act on behalf of the employer and there was reliance upon apparent authority of if he was aided by the agency relationship
- Apparent authority-
- When the boss purports to act and they do not have the power to do so. Reliance on the apparent authority must be reasonable
- Aided in the agency relationship standard
- Definite use of this would be where the supervisor performs a tangible employment action
- Tangible employment action
- a significant change in employment status such as hiring firing failing to promote reassignment with significantly different duties or a decision causing a significant change in benefits
- what happens when there is no tangible employment action?
- D must prove by a preponderance that they exercised reasonable care to prevent and correct any SH AND!!!! P failed to take advantage of any preventive or corrective procedure provided by the employer
- Burlington Industries v Ellerth
- Court sets out the AD/agency rubric devised above- ∏ never told the higher ups about the behavior and only once told the boss that he was being inappropriate.
Court remands for a determination whether the employer should be vicariously liable for D that did not result in a tangible employment action. ∆ must show that the ∏ failed to take advantage of the preventive/corrective procedure provided by them and the ∆ exercised RC to prevent SH
- Constructive discharge
- There was a hostile work environment and that it was so intolerable that the resignation was fitting as a response-
- Can constructive discharge rise to the level of a tangible employment action?
- Yes when the resignation resulted from a tangible change in the work environment that resulted from a supervisors official act
- Pa State Police v Suders-
- ∏ complains to the EEOC officer but then resigns 2 days later. ∏ had stated a claim for CD. Scotus says- COA was wrong to say that CD was a tangible employment action-
This is only true when the resignation resulted from a tangible change in the work environment. Must have resulted from a supervisor’s official act. Otherwise the AD will be available
- Matvia v Bald Head Mananagement
- AD in action. Raises were not a tangible action.P can't wait around to see if the Sh will stop and then complain that the D did nothing about it
- Are grooming codes ok?
- Willingham v Macon Telegraph-
- Employers can refuse to hire people b/c of their hair
- Frank v United Air-
- ∆ had a weight requirement that based the men’s limit on a large frame and the women’s on a slight frame. Court says that this is D
- Carroll v Talman Federal Savings & Loan-
- Bank could not allow men to wear business attire and make women wear uniforms. Based on the idea that women can not pick out appropriate attire
- Craft v Macromedia-
- - ∏ says that women are held to a higher standard than men in their appearance-
Court disagrees- Employers were really concerned with consistency, other considerations and they made just as many suggestions to the male employees as to the males
Note- The employer could not get a BFOQ if their customers preferred better looking news anchors
Essential function of the program is to get the information out, not to have good looking anchors
- Is discrimination based on sexual orientation D based on sex
- How is the word religion interpreted under title vii?
- The word religion is interpreted broadly to cover not only organized religions but also employees moral or ethical beliefs
- PF case for religious D
- : (1) he is a member of a protected class; (2) he was qualified for the particular job; (3) he was discharged; (4) the position remained open after his discharge to similarly qualified applicants; and (5) the employer knew of the employee’s religious beliefs.
- Van Koten v. Family Health Management
- Court finds that there is not enough evidence to show that the employer knew about his religion-]
1.∆ knew that the ∏ was a vegetarian and 2 days before he was fired the boss heard that halloween was the ∏’s most sacred day-
a.This, coupled with the LNDR ( Fuck the procedure) is enough to find that the firing was not based on religion
2.Timing does matter in these cases where you are trying to prove that the employer took an action based on protected class status
- DO employers have a duty to accommodate a person's religious beliefs/practices?
- Yes, but if the accommodation is an undue burden the employer does not have to do it
- How is undue burden defined under Title Vii for religion
- Anything beyond de minimis
- Wilson v US West Communications
- ∏ wants to wear a button with an aborted fetus on it. ∆ offers to let her cover it while at work or to only wear while she is at her desk-
1.Court found that the ∏’s religion did not require her to be a living witness so she did not have to leave the button exposed
2.Even if she had to show the button the 40% loss of productivity would probably make it an undue burden
- 702 exception for religious entities
- § 702-Title 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 carrying on the activities of the entity
- HOw far does the religious exemption extend?
- If they are a religious entity then the exemption extends to all employees, but only as far as religious D ( unless the ministerial exception applies)
- What is the requirement to meet the 702 expception for Religious D
- Entity must be wholly or partly owned by a church-
- What is the limitation of BFOQ for religion?
- Most of the people who could qualify for the BFOQ would be in one of the exempted categories
- Prime v Loyola University
- 1.Loyola could have a tenure preference for Jesuits,
2.Court said that it was reasonably necessary to the normal operation of the Jesuit institution that the students at least have some contact with a Jesuit
3.Was decided before Johnson Controls
- EEOC v Kamehamea Schools
- 1.Court rejected the Prime distinction
2.School wanted a wholly protestant teaching staff
3.No evidence that the teachers would not be able to perform their jobs as well
4.Preference was based on an opinion in a will
- Establishment clause problems
- In the least it seems like the establishment clause extends to decisions about clergy
- ORegon v Smith
- Right to free exercise does not relieve the individual of the responsibility to comply with valid and neutral laws of general applicability on the ground that his religion allows it
- Combs v Central Tx Annual Conference of the UMC
- ∏ was fired after taking maternity leave and sued for sex D. DC decided the case using the ministerial excpetion. Court distinguishes Smith by saying that it did not speak about administrative/clergy deicsions, but was about the indiviudals right to free exercise.
- How far does the ministerial exceptio go?
- 1.2d circuit says that an organist is covered
2.Fact specific inquiry
3.SOA on whether you can get around the ME with a HWE SH claim
a. 9th circuit says yes, unclear how other circuits would deal with it
- Religious Freecom Restoration Act
- 1.Gov’t will not substantially burden a person’s exercise of religion even if it results from a law of general applicability UNLESS
2.It is in furtherance of a compelling state interest and is the least restrictive means of furthering that compelling governmental interest-
- Boerne v Flores-
- Sup Ct struck down the RFRA as applied to the states
a. Still a debate as to whether it applies to the federal government-
- Definition of national origin
- - Defined as the country from which a person came or where their ancestors came from. Broader than race in that it encompasses D within a particular race as well as D based on a person’s place of birth
- Does Title Vii go to D based on alienage?
- no, citizenship is analytically disctinct from NO( could lead to impact claim or violation of the Immigration Reform andf Control Act)
- Espinoza v. Farrah Manufacturing Co-
- ∏ sues challenging the ∆’s citizens only rule. Court found no D since >90% of the ∆’s staff was of mexican national origin-
- EEOC v Sears-
- National origin D in action.
∏ tries to get a transfer to a store in NC. He is very qualified and the ∆ ends up hiring a local for the job who has no experience. Sears gives three reasons why they did not hire the ∏: he did not contact us, there was no job, they thought that he was accused of SH in Ca.
- Accent cases-
- If the rule is no foreign accents then the ∆ will probably have a hard time but a No accent rule at all might be closer to being better( could still lead to a DI claim)
- Two kinds of retaliation
- Opposition and participation
- What is different about the way that the court treats opposition v participation claims?
- THe form of opposition can take you out of the protection of the statute while Protection for R based on participation is almost absolute-
- Will the court take the form of opposition into account?
- Yes, See MD v Green
- What is necessary in order to find an opposition claim?
- The person probably has to have a reasonable good faith belief that the practice that they are opposing violates Title Vii
- Clark COunty School District V Breeden-
- -∏ claims she was disciplined for complaining about one comment made by two male coworkers-Court says that no-one could have thought that what the men said was a violation of Title Vii-ii. Court also dismisses the participation claim-∆ did not know that the ∏ was planning on suing until after they had already made a decision to transfer the ∏.
- Jordan v Alternative Resources
- - 4th circuit holds that a reasonable good faith belief must be present and that the ∏ could not have believed that the co-worker’s one extremely racist remark was enough to cause a hostile work environment
- Participation claim
- i. Retaliation b/c n employee or applicant has made a charge, testified, assisted, or participated in an investigation, proceeding, or hearing under the statute
- Pettway v American Cast Iron
- - Court finds an actionable R claim even when the employer thought that the P had maliciously brought suit with the EEOC
- PF case of retaliation
- 1.∏ was engaged in protected conduct ( either participation or opposition)
2.∏ suffered an adverse action-
3.There is a causal link between the two
4.(Some courts require a 4th requirement of employer knowledge of the conduct)
- What kind of opposition conduct is acceptable?
- 1. Opposition conduct that is illegal or sufficiently disloyal can take the ∏ out of the protection of the statute-
- Crown Zellerbach-
- - ∏’s write a letter to one of the ∆’s biggest customers that the ∆ is racist. Court finds that this was a reasonable response to the ∆’s behavior
- Emporium Campwell CO v Western Addition Community Org
- Court said that handbills calling the bosses a racist pig and calling for a boycott might fall outside of the protections of the law
- What is different about the way that the court looks at a retaliation claim vs. a normal case of DT?
- In assessing the LNDR, the Court goes beyond what it would do in a simple Burdine case and looks to see whether the ∆’s reaction was reasonable based on the form that the opposition conduct took
- Jennings v Tinsley Park
- - Instead of alerting her boss at the same time as other school board members, ∏ sent out a memo to everyone else hours before he got his. Court holds that this type of opposition is not protected by the statute-
This is disloyal and it goes even further by undermining the boss’s relationship with his peers.
- What constitutes an adverse employment action?
- The action must be such that it would deter a reasonable employee from filing the charge
- what distinguishes what is covered by retaliation from a straight D claim?
- Retaliation claims cover activities that occur outside of the workplace
- Burlington Northern v White
- - ∏ is transferred to a different job that is dirtier and more physical after she files a charge with the EEOC.
i.Court rejects both ∏( any action is R) and ∆’s( must be a materially adverse change in the terms and conditions) standards and goes with a reasonable employee standard-
1.Reasonable employee must think that the action is materially adverse
- Does the mixed motive defence apply to retaliation claims?
- Possibly. 703(m) amends only 703, but the EEOC says that it covers for retaliation. If it does not then an employee could file a D claim in order to ward off being fired. HOwever even if it does not apply there is an argument that PW would over and then you would have to look to whether the emplyer took portected class status into account when making the decision thus shifting the burden to the D.
- Are mandatory retirement ages allowed?
- Not unless it falls into an exception or a BFOQ
- What are the exceptions to the no mandatory retirement rule?
- Bona fide executive, and the police/firefighter exception.
- Bona fide executive exception?
- Person who is a bona fide executive and has been for at least two years before they reach 65 can be forced to retire if they can collect their retirement and it is more than 44K
- Is there a cost justifcation defense for the ADEA?
- Yes, but only in the giving of fringe benefits like medical/life insurance.
- What must the company do in order to be ok with the BFBP?
- They must pay out no less for older workers than for younger workers.
- Can a company reduce the amount of benefits that it pays out to older workers?
- Yes, they can reduce the amount that it pays out to coordinate with other benefits like social security, medicare or disability
- Can a company use an early retirement incentive plan?
- Yes, as long as it is consistent with the purpose of the ADEA
- What is the Older Workers Benefit Protection Plan?
- It allows for a waiver of ADEA rights.
- What are the reruirements for a waiver of the ADEA under the OWBPA?
- a.Must be written in a way that can be understood
b.Make reference to ADEA claims
c.Can’t waive future rights
d.Must be supported by consideration
e.Must advise that the person needs to consult an attorney
f.Must allow 21 DAYS TO CONSIDER
g.MUST ALLOW 7 DAYS TO REVOKE THE OFFER
h.If for a group then they have 45 days and the group must be given a brochure showing what the waiver did
- Does a person have to tender back consideration that they received for retiring early if the waiver of ADEA rights did not comport with the OWBPA?
- no, but they may lose the money or have their damages reduced by the amount that the received
- Oubre v Entergy Operations Inc
- ∏ takes 6k and early retirement. She was only given 14 days to consider her options. Later she sues for a violation of the ADEA
1.∆ argues that retention of the 6k was a ratification of the K and that in the least she need to tender back the money that she was paid-
a.Also a problem of what she would have to tender back. All? Only part?
2.Court disagrees- the statute makes no mention of tender back, and that accepting the ∆’s rule would put people in a position where they have to turn down the money in order to sue
- What is different about the ADA compared with Title Vii?
- Employers can engage in DT if the person would not be able to perform the job, BUT if they could perform the job with reasonable accommodation they can not D based on their disability
- What are the three ways that an employee can be considered disabled under the ADA?
- i.Physical or mental impairment that substantially limits one or more of the major life activities of an individual
ii.A record of such impairment
iii.BEing regarded as having such an impairment
- what does it mean to be substantially limited?
- Sub limit= totally or significantly restricted in ability to perform major life functions in comparison with the average person
- Factors to look to to see if something substantially limits?
- 1.Nature/severity of impairment
2.Duration/expected duration of impairment
3.Permanent or expected permanent impact of the impairment
- HOw can someone be regarded as having a disability?
- i.They do not quite meet the definition of dis, but they are treated as if they did
ii.PHYSICAL or mental impairment that sub affects but only based on the way that others see it
iii.Has no impairment but is treated as if they do
- What is EEOC's role under the ADA?
- UNder TItle I the EEOC has substantive rule making power which meand that the court has to defer to their judgment IF the statute is ambiguous AND their decision is reasonable
- a physical or mental disorder that is outside the normal range
- Can you be temporarily disabled?
- Probably not b/c it will not substantially limit a major life activity
- Bragdon v. Abbott
- Court says that HIV is an impairment that substantially limits the major life activity of reproduction and therefore a disbility under the statute
- Are you disabled if you can no longer perform the functions of your job?
- Possibly, but only if the activities that you can not perform at work either limit your ability to work in a broad class of jobs OR affect some other outside or work major life activity
- TOyota v. Williams
- ∏ has CT and sues when they refuse to let her do only part of her job.1. COA says that she is limited in performing certain manual tasks that are necessary to perform her job so she is disabled-
2. Scotus disagrees with this analysis-
1. IT has to be a MAJOR life activity-Most people would not be substantially limited by not being able to perform these activities. Must be something that most people perform daily. In order to be limiting of major life activity of working then it must limit the ability to perform a class of jobs, not just the job in question
- Does the court look to the disability in its mitigated state?
- YEs, If the impairment is correctible by medication or prosthetics so that it no longer substantially limits a major life activity then it is not a disabilitySee Sutton
- Sutton v United Air LInes
- ∏’s are legally blind without their glasses and the ∆ refuses to hire them as global pilots.
1. ∏’s argue that the court should consider their impairment in the unmitigated state-
2.Court disagrees- Congress intended to consider the people in the mitigated state-
- Why doesn't the court defer to the EEOC in Sutton?
- No need to defer to the EEOC interpretive guidances in this case-
1.EEOC was given rule making power under Title I of the ADA not over the general stats that apply to all titles where the defintion of disability is
2.Also, the Court does not have to defer to the interpretive guidances, just the regs
- Why don't the Sutton's win on the regarded as claim?
- The employer did not think that their impairment substantially limited their ability to work in a broad class of jobs so they did not regard them as having a disability
- Besides being disabled what must the P be in order to be covered by the ADA?
- Definition of qualified person under the ADA?
- A PERSON WHO, WITH OR WITHOUT REASONABLE ACCOMMODATION, CAN PERFORM THE ESSENTIAL JOB FUNCTIONS-
- Defintion of essential job functions
- TASK THAT THE JOB POSITION EXISTS TO PERFORM OR A FUNCTION THAT A LIMITED NUMBER OF PERSONS ARE AVAILABLE TO PERFORM
- What are factors to look for in order to determine if a job function is essential?
- 1.Employers judgment is considered concerning what tasks are essential
2.Job descriptions are considered
3.Frequency that the task is performed
1.Even an infrequent task can be essential if it is very important
2.Amount of time spent performing the task
3.whether the task has been performed by past or present incumbents
- Southeast Community College v Davis
- Deaf women wants to be excused from the surgical rotation in nursing school-
1.Scotus says that otherwise qualified under Rehab Act means an individual who can meet the demands of the job DESPITE the disability, not able to do everything not affected by the disability
2.Not required that the school change the program to include her if the parts of program are essential
- If a person is regarded as having a disbaility can they be fired for not being able to perform all the functions of the job?
- No. only the essential functions
- Davis v Pocono Medical Center
- ∏ is a nurse who can no longer lift patients b/c of a back injury. Sues under prong 3 claiming that the ∆ thought that she was disabled. ∆ argues that ∏ is no longer a qualified person, and also that if you are a regarded as person then you have to perform all functions of the job not just the essential functions-
1. SCOTUS disagrees with this-
1.∏ just has to perform the essential job functions whether they sue under prong I or prong III
2.Lower court said she had to perform all the functions and granted SJ
2.SCOTUS says that there is a genuine issue of fact as to whether lifting patients was an essential job function-
1. Nurses did have to do it, but there were orderlies around to help
2.∏ argued that caring for patients was the essential function
3.SCOTUS gives persuasive authority only to the job description which describes lifting patients
1.Court should not consider this dispositive-
- Defintions of reasonable accommodation
- Making facilities accessible to and usable by disabled individuals
- Possible RA's
- 1.Job restructuring
2.part time or modified work schedules
3.reassignment to a vacant position
4.acquisition or modification of examinations
5.training materials or policies
6.provision of qualified readers or interpreters
7.Other similar accommodations
- Is the duty of RA under the ADA comparable to the duty of RA under Title Vii for Religious Beliefs/practices?
- NO the burden on the employer is a lot higher under the ADA
- Defintion of undue hardship under the ADA?
- An action requiring significant difficulty or expense
- How do we look at RA claims?
- They are evaluated in the context of the particular employment situation. An accommodation that would be reasonable for a fortune 500 company may be unreasonable when imposed on a small business
- Does a RA need to rise to the level of undue hardship in order to be a defense?
- POssibly not. Posner would look to the CBA to determine if the cost is too high compared to the beneift. See Van Zande
- Van Zande v State of Wi-
- ∏ wants to be able to get a desktop at home in order to avoid losing 16 hours of sick time. ∆ has already allowed her to work from home
1.Posner starts by saying that pressure sores caused by being in a wheelchair count as part of the disability
1. This is just a symptom of the illness
2.Some accommodations would not be reasonable even if they do not cause an undue hardship-
1. Wi could afford a computer for her, it just would be an unreasonable accommodation to avoid having to use some sick time
3.Also thinks that being in the office is an essential function, so next time she asks to stay at home, then they probably don’t have to do it
- Does the duty to RA trump neutral employer rules?
- Sometimes1. NO transfer rule, no sitting at work rule, no part time, are all probably going to have to bend
- Does a person who wants to transfer into an open job automatically get the job despited the presence of more qualified candidates?
- SOA on this one, 10th circuit says yes, while the 7th circuit says no bonus points for being disabled
- Can the application of a neutral seniority system be a defense to an ADA claim?
- In most cases yes, unless the P can demonstrate that there are special circumstances that would make this ok
- What are some special circumstances that might allpw for a deviation from the neutral employment system? what case?
- 1.Can be shown by
1. Showing that the ∆ unilaterally changes the system fairly frequently to the point where one departure will not likely make a difference
2.Showing that the system already contains a lot of exceptions
See US airways v Barnett-COurt discusses the above stuff, and finds that the seniority system is probably ok, but remands for a determination of the special cirucmstances
- Does an employee have to ask for the RA in order to be protected by the statute?
- Probably. THey mat not need to ask for the specific circumstance, but they should probably ask for something
- who has the burden to show that the accommodation is reasonable?
- 1.∏ has the burden to show that the accommodation is reasonable on its face
2.∆ has the burden to show that the particular circumstances of their case make it unreasonable
- what are the defenses to discriminatory job qualifications of the ADA?
- All discriminatory qualification standards are subject to the same defenses
1.Job related for the position in question and consistent with business necessity
2.Permitted or required by another federal statute or reg
3.Necessary to prevent a direct threat to health and safety
- Direct threat defense?
- Defined as a significant risk to the health/safety of others that can not be eliminated by a RA
- Factors to consider in referece to the direct threat defense
- 1.Duration of the risk
2.nature and severity of the potential harm
3.likelihood of the potential harm
4.imminence of the potential harm
- School Bd of Nassau v Arline
- SCOTUS concludes that a teacher with TB is not qualified if poses a significant risk to others and the risk cannot be eliminated through reasonable accommodation
- Does the direct threat defense apply to threats to self?
- Chevron v Echazabal-
- - ∏ has Hep C. ∆ fires him to keep him from working around chemicals that would hurt him
1.Court defers to the EEOC’s judgment that the direct threat language includes a threat to self
1. This is a title I case and EEOC has been given substantive rule making power
2.Language of the statute is not specific enough to get expresio unis
1.Threat to others language is merely there to illustrate a possible reason why a person would be a direct threat
3.This is different from Johnson controls b/c it is an individualized inquiry and not a generalization about a class in general
- Drug excpetion for ADA?
- Statute says that a qualified person with a disability does not include a person who is currently engaging in the illegal use of drugs
- Exception to the drug excpetion for the ADA
- Statute excludes from the ban on the use of illegal drugs someone who
iii.Has successfully completed a supervised rehab and is no longer using illegal rugs
iv.Is participating in a supervised rehab program and is no longer engaging in drug use or
v.is erroneously regarded as still using, but who is not
- How does the court define currently engaged in the use of illegal drugs
- This does not mean that he decision has to be made on the day of the action. MEANS THAT IT WAS RECENT ENOUGH THAT THE EMPLOYER WOULD THINK THAT THE PROBLEM WAS ONGOING
- Zenor v. El Paso Healthcare Systems, Ltd-
- ∏ is a pharmacist who goes into rehab for coke addiction. ∆ fires him after he gets out of rehab.
1.Court says that even though he was not using when they fired him it was recent enough that the employer could have regarded the problem as ongoing
2.Also, he was no longer qualified-May be an essential function that the ∏ not be a drug addict
3.Also he was not significantly limited in major life activity
- Can an employer fire an employee for vioalations of work place rules under the ADA?
- AS long as the violation is not b/c of the disability
- DeSpears v Milwaukee County-
- Man who is fired for driving drunk claims that he was D’d against b/c of his alcoholism.
1.Court disagrees- Fact that he was a drunk may have made it more likelt that he would get a DUI, but it was based more on his decision to drive while he was drunk
- Is there a benefit plan defense to differing benefits under the ADA?
- Yes, the ADA does not require employers to provide benefits but if they do they must do so in a way that does not D based on disability
b.Plan can not be a subterfuge to evade the purposes of the act
iii.A plan that makes disability based distinctions in benefits is a subterfuge unless the distinction is cost justified
1.Must be an actuarial basis for not covering certain disbilities
- Can an employer require medical examinations?
- It depends on when they are doing it.
a.ADA prohibits a pre-offer medical examination.Employer can ask if the applicant can perform certain functions, but not if they are disabled
b.Employer can require a post-offer medical examination. Must be given to all applicants. Refusal to hire based on the results must be job related. Must be kept confidential
mployer can also require post job medical examination.
c.Employer can also require post job medical examinationDoes not have to be for everyone but it must be job related/consistent with business necessity
- SOl for 1981 claims
- Usually the most relevant SOl from the state. However if It is a claim that only became available under the 1991 amendments THEN SOL is 4 years
- What are the two SOL's that have to happen in order to get into court
- File a charge with the EEOCFile a claim with the court
- WHat if there is a deferral agency from the state where the charge is filed?
- The person gets more time to file with the EEOC (300 days vs 180), but they must file with the state and give them either 60 days to look at the charge or if the state releases the claim the P must file with the EEOC within 30 days
- When does the clock start running for filing the charge with the EEOC
- Clock starts running when the ∏ knows about the complained about action
- Is there a discovery rule that tolls the filing of the charge with the EEOC?
- Maybe, some justices have said that there might be one, but its contours may be unknown, It may only apply in cases where the D actively tried to hide the real reason for the action
- Delaware State College v Ricks-
- ∏ is denied tenure in March. Files a grievance and finds out that it is denied in June 74. He was given a year to continue teaching and his last day is June ‘75. He files the charge with the EEOC in April of 1975 alleging national origin D
a.Court holds that the appropriate time to complain is when you are on notice of the adverse employment action-
- When the D is part of a series of events when do you start counting?
- FOr a HWE claim you only need ot have one event within the 180/300 day window. For discrete actions you need to file for each action. Pattern/practice actions are more complicated.
- Amtrak v. Morgan
- ∏ files a HWE claim and charges of discrete acts of D
1.Court finds that all of the HWE actions come in, but that discrete acts before the time of filing do not.
a.Time for filing is not tolled during the pendency of a grievance proceeding
2. Employers can bring a defense of laches if the ∏ sits on their rights for too long
- When can an employee challenge discriminatory seniority systems?
- 1991 civil rights act overrule Lorrance to say that the system can be challenged when it was adopted, when the person is hired or when they are harmed BUT ONLY if they can show that the system was adopted for a discriminatory purpose
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