EMPLOYMENT LAW/Fall 2011/Grebeldinger/Syllabus A Introduction (Assignment 1) Assignment 1: A.

We will go over the course Info Sheet in detail. B. Work and Society. • Consider the pros and cons of the employment at will doctrine. • Should an employer be required to have just cause for terminating an employee? What should/should not constitute just cause? C. A Theory of Fair Employment Laws. • We will compare and contrast the anti-discrimination theories of equal treatment and equal achievement. These are academic theories, not litigation proof structures. Employment Discrimination (Assignments 2-7) Assignment 2: A. Discrimination Statutes, in Federal Law of Employment Discrimination (6th ed. 2009). B. The federal courts, expanding upon statutory language, created several methods for proving discrimination under the federal anti-discrimination statutes: • Disparate impact (DI), in which the plaintiff proves that the employer, without intent to discriminate, used a facially neutral employment practice (such as a standardized test) that statistically harmed a protected group. • Disparate treatment (DT), in which the plaintiff proves that the employer intentionally discriminated against him. The DT theory further divides into: o Systemic disparate treatment (SDT), in which the plaintiff brings a class action on behalf of a protected group. Statistical evidence is often dispositive. o Individual disparate treatment (IDT), in which one or a few plaintiffs sue the employer. The IDT theory further divides into:  Pretext, or  Mixed motive. C. Griggs v. Duke Power Co. • What neutral practices did the employer use? • What was the evidence of adverse impact upon African-Americans? • Should an employer be liable under Title VII even though it did not intend to discriminate? D. In 1991 Congress amended Title VII to provide this structure for a DI claim:

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What evidence did the plaintiff have of pretext? o “For discrimination” means evidence of discriminatory animus. the plaintiff must prove that a particular employment practice caused DI on the protected group. the plaintiff must prove that “there is some evidence that the employer intended to discriminate against him in reaching the RIF decision.” Pippin v. Second. Third. What evidence did the plaintiff have of discrimination? B. nondiscriminatory reason (LNR). there are two ways in which the employer will prevail: o The employer can prove that the practice does not in fact cause DI. Sanderson Plumbing Products. even if the employer proves that the practice is job related and consistent with business necessity. • The Supreme Court developed a tripartite test for IDT-pretext: o (1) Prima facie case (PFC). Dillon Cos. and o (3) Pretext for discrimination. o (2) Legitimate. • How and why did the employer develop the 1995 written exam? • What were the employer’s “job related and business necessity” arguments in support of a cutoff score of 89? Why did the court reject each argument? • What less discriminatory alternative was available to the employer? • In 2010 the case reached the Supreme Court on statute of limitations grounds. “Title VII does not define ‘employment practice. Lewis v. 2 . • Contrast DT and DI. • The PFC framework must be modified when the plaintiff is discharged in a reduction-inforce (RIF).” o “Pretext” means evidence undercutting the employer’s LNR. Young v. Logically. The Court also stated. but then prove that the practice is job related and consistent with business necessity. The employer.” Assignment 3: A. (10th Cir. E. o The employer can admit that its practice causes DI. the plaintiff cannot prove that his job remained open and that the employer sought to fill it with someone else. • The Reeves rule on “pretext for discrimination” is commonly referred to as “permissive inference. The Court held that most of the DI claims were timely. Burlington Resources Oil and Gas Co. Instead.• • • First.’ but we think it clear that the term encompasses the conduct of which [the plaintiffs] complain: the exclusion of passing applicants who scored below 89 (until the supply of scores 89 or above was exhausted) when selecting those who would advance. City of Chicago. challenges the plaintiff’s statistics and often provides an alternative statistical study. through experts. Reeves v. the plaintiff will prevail if she can prove that there was a less discriminatory alternative available to the employer. 2006).

Now what? How do we distinguish or harmonize the two IDT proof structures? • The procedural posture of Desert Palace was post-verdict. • Consider the concurrence’s criticism of Rachid. Zhang v. In 1991. Rockwell Automation. v.” Assignment 4: A. most courts applied IDT-mixed motive when the plaintiff had direct evidence and IDT-pretext when the plaintiff had only circumstantial evidence. B.g. 2010) and for Title VII retaliation claims. e. We will adopt the Fifth Circuit’s Rachid approach discussed in Hollins. apart from the supervisor’s recommendation. should Desert Palace have on summary judgment proceedings? D. o The Supreme Court in Staub v. Inc. and attorney’s fees. Wright v. Murray Guard. Congress amended Title VII to provide this proof structure for IDT-mixed motive: • First. if any. e. Lower courts have rejected the mixed-motive proof structure under the ADA. • Prior to Desert Palace. the employer may prove a partial affirmative defense – that it would have taken the same adverse action in the absence of the plaintiff’s protected status.D. especially in the procedural posture of summary judgment. Premier Ford Lincoln Mercury. entirely justified. FBL Financial Services (2009) held that the mixed-motive proof structure is not available under the ADEA. The Supreme Court in Gross v. Costa.When should a factually incorrect LNR create an inference of discrimination? Why was the plaintiff’s evidence of a racial epithet insufficient to survive summary judgment? • The plaintiff also made a “cat’s paw” argument – that a biased employee gave tainted information to (and thereby misled) the ultimate decisionmaker. • The circuit courts are split on how to interpret and apply Desert Palace. “the supervisor’s biased report may remain a causal factor if the independent investigation takes it into account without determining that the adverse action was.g. 2011). Desert Palace. • What is Rachid’s “modified McDonnell Douglas approach” for IDT-mixed motive? • What evidence did the plaintiff have of pretext? Of discriminatory animus? • Where should we draw the line between relevant epithets and mere “stray remarks”? E. What effect. If the employer succeeds. Inc. Children’s Hospital of Philadelphia (E. Pa. the plaintiff receives only a declaration. Serwatka v. an injunction. the plaintiff must prove that her protected status was a [not the] motivating factor in the adverse employment action. Assignment 5: 3 • • . C. • Second. Proctor Hospital (2011) held in a case brought under the Uniformed Services Employment and Reemployment Rights Act that. (7th Cir. Inc. Hollins v.

according to the majority. the ADEA. Mobley v. • How does the proof structure for co-worker harassment differ from that for supervisory harassment? • Why was the plaintiff’s case stronger for co-worker harassment? Assignment 6: A. Christ Hospital. C. B. B. City of Boca Raton. Title VII. The employer then terminates the employee in retaliation for her complaint. the ADEA. Title VII. EEOC Notices re Disability Discrimination and 2008 Amendments. Jakubowski v. B. • Why was the plaintiff’s conduct covered under the participation clause? • What was the plaintiff’s evidence of a causal connection? Assignment 7: A. • Why was the plaintiff “a qualified individual with a disability”? • How. Gallagher v. • Understand the difference between the opposition clause and the participation clause. There is a separate proof structure for retaliation claims. and the ADA allow a cause of action for harassment based upon protected status.A. Crawford v.H. • Why was the plaintiff not “otherwise qualified with a reasonable accommodation”? • Do you think the employer adequately participated in the interactive process? 4 . • Why was the plaintiff’s conduct covered under the opposition clause? • What do you think of Justice Alito’s concurrence? C. Crown Motor Co. • What constitutes a hostile environment? • When is an employer liable for a hostile environment created by a supervisor? Why? • What is the employer’s affirmative defense to supervisory harassment? C. There is a separate proof structure for harassment claims. Robinson Wordwide. did the employer reasonably accommodate the plaintiff? Why does the dissent disagree? C. Faragher v. Allstate Insurance Co. • One classic retaliation scenario is: A female employee complains to her employer that she was the victim of sex discrimination in not receiving a promotion. Abbott v. Inc. Metropolitan Government of Nashville and Davidson County. and the ADA allow a cause of action for an employer’s retaliation against an employee who asserts her rights under the statute.

Should the plaintiff be allowed to argue for accommodations that he did not seek prior to termination? 5 .• Consider Judge Cole’s concurrence.