Employment Law Outline

Fall 2003 – Dever I. Employment at Will and Wrongful Discharge a. CL default rule: employment at will i. E/ee can quit for any reason at any time without penalty; e/r can terminate for any reason or no reason without penalty ii. Exception: wrongful discharge in violation of public policy iii. Other exceptions = written empt. Ks; oral Ks sometimes b. Howard v. Wolff Broadcasting =  had a job as a DJ at a radio station. She was fired b/c the e/r didn’t want women on the air. E/r only had 7 e/ees, so T7 didn’t apply.  claimed she was not an AW e/ee b/c she had a lifetime K with the station. She didn’t have a K to back her up though. She tried to establish a unilateral K through the issuance of an e/ee manual from her e/r. Didn’t work. Argued that sexual discrimination in the work place = against PP and she should be able to sue for wrongful discharge in violation of PP. CT = passed the buck to the legislature; cited several times where CT specifically refused to adopt a PP exception to AW empt doctrine. If there is going to be an exception, the LEGISLATURE should implement it through statute. i. MINORITY stance c. Martin Marietta v. Lorenz =  claimed that he was wrongfully discharged in violation of PP b/c he refused to misrepresent the quality of MMs products to NASA, which e/r had encouraged him to do.  had told e/r he wouldn’t sign off on any paperwork representing to the government that the materials were worthy, knowing they weren’t. He argues that its against PP to misrepresent information to the government that will affect other people’s safety, AND subject him to criminal liability.  alleged he was then fired for NOT signing the paperwork. T/C found for MM; but on appeal, the court recognized the PP exception to the AW empt doctrine. i. Rule: if you plead and present evidence that you have been asked to violate the criminal law, that you refused to violate the law, and then lost your job, you can bring a COA under a judicially created exception to the AW empt doctrine = wrongful discharge in violation of PP. d. Wrongful Discharge in NC i. WD in violation of PP = TORT action = PDs can be obtained ii. Sides v. Duke University = Nurse at Duke taking care of patient in recovery after surgery. Doctor wanted her to give patient some medicine, but nurse refused claiming it would put the patient’s health in danger. Doctor gave patient medicine anyway and he died. Patient’s estate sent  nurse a notice of deposition. Doctors encouraged her to testify untruthfully. She told them she would testify truthfully and subsequently was treated hostilely at work and then fired from Duke. She sued on several claims: 1) not subject to AW empt doctrine b/c I have a K that I can only be fired for incompetence; 2) WD in violation of PP. T/C = judgment to Duke. On appeal, reversed for . FIRST TIME WD in violation of PP recognized in NC (Ct of Appeals). 1. Rule: an e/ee can’t be fired for refusing to testify untruthfully in a judicial proceeding 2. Ct on remedy: if  pleads and can prove WD,  can recover PDs iii. Coman v. Thomas Manufacturing Company = State and federal law require truck drivers to keep a log of how far they’ve driven, how long they’ve been driving, and when they’ve taken breaks. s boss didn’t want him taking breaks, so he told  to falsify the driving records to show that the company was complying with the law. NC S/C gets this case. They don’t look to federal law, but say that the PP violated here are NC regulations and state law governing safety for truck driver’s travel. If  can prove violation of these regulations, he can recover in tort and take himself out of the g/r of employment at will. 1

iv. Harrison v. Edison Brothers = H complained of sexual harassment at work. When she didn’t cede to her e/r’s demands, she was fired. Ct only had Hogan case to look to for an answer on this one and it involved SH b/t 2 employees. Decided that case wasn’t applicable here b/c SH of e/ee by e/r.  was being asked to violate a statute in NC that prohibits prostitution. “Have sex with this manager, OR lose your job.” She had to prostitute herself to keep job; which would be a violation of the law of NC. 1. PP = statute prohibiting prostitution = LOOK for violation of STATE public policy.  shouldn’t have to violate the law to keep her employment = consistent with Sides and Coman. If  can plead and prove case, can recover for WD in tort, and maybe get PDs v. Amos v. Oakdale Knitting = A alleged he was required to work for a wage BELOW minimum wage OR he’d be terminated from empt. He brought claims under NCWHA and for WD in violation of PP. 1. PP = minimum wage levels codified in NC statutes (under NCWHA). If e/r doesn’t pay what he is required to pay, his actions MAY be violative of PP. NCWHA does provide a statutory remedy for this problem, BUT NCGA hasn’t said that remedy is the EXCLUSIVE remedy available to s. Therefore, if A can plead and prove WD in violation of NCWHA, he can recover in tort and get PDs. vi. Phillips v. Stevens =  was harassed at work and told not to tell anyone about it. She was then terminated. The PP she relied on was the Equal Employment Practices Act. This is simply a STATEMENT of public policy; not a separate statutory scheme. It is the PP of NC to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold empt without discrimination and abridgment on account of race, religion, color, national origin, age, sex or handicap by e/rs which regularly employ 15 or more e/ees.  claims WD in violation of EEPA (which includes sex discrimination). 1. EEPA is MOST typically relied upon statute for a state law WD claim in NC. For sex discrimination, rely on EEPA as a statement of PP to get claim heard. vii. Daniel v. Carolina Sunrock Corporation =  claims she was terminated after she told her boss she’d testify truthfully w/r/t a former plant superintendent. He said: “Do whatever you have to do, but remember who you work for.” She never had to testify, but was terminated about 1.5 years later. NC S/C: granted SJ to ∆. 1.  failed to prove causation here…18 months elapsed b/t the time she was subpoenaed and the time she was terminated by e/r.  failed to show that her telling her boss she would testify truthfully LED to her being terminated. viii. Hughes v. Bedsole =  was a jail matron. She failed to lock cell block doors on multiple occasions. She was disciplined several times for her negligence. She was given one last chance by the sheriff, but left the damn doors open again. After that, she was fired.  claims fired b/c a woman (violation of PP under EEPA), not b/c of her negligence on job. T/C = termination b/c of negligence on job, not her sex. Granted SJ to ∆. 1. NOTE = if there had been ANY evidence of discriminatory animus towards , court probably would’ve allowed this to pass SJ stage. 2. POINT = EEPA can be a PP ground for WD claim. BUT even though  can plead a COA using it,  STILL must PROVE the case. Here, court tells  her proof of sexual discrimination fails. NO recovery for WDPP. ix. Roberts v. First Citizens Bank =  was a loan officer at FCB. She alleged she was fired b/c she failed to cash out a CD without giving notice to the debtor (whose loan was secured by his mother.)  felt mother should be given notice that they were about to foreclose on CD before foreclosing, so mother would have a chance to pay off the debt. Practically, UCC does require creditor to give this notice. Bank fired , allegedly b/c of 2






her performance.  alleges terminated b/c didn’t do what boss told her to do in regard to CD. 1. PP here = NCUCC. UCC establishes PP of NC on debtor-creditor relations.  shouldn’t be fired for refusing to violate the law of NC. CT awarded  PDs. Bass v. City of Wilson = B was APPLICANT not an e/ee. 1. Federal court interpreting STATE law decided to extend the concept of WDPP to an applicant (IF applicant would’ve gotten the job). NO state court has extended WD to an applicant; so exception to AW empt doctrine doesn’t apply to applicants in NC! Johnson v. Mayo Yarns = J displayed a confederate flag on his lunchbox at work. He was asked to remove it but didn’t. He was then terminated. He claims termination was against PP b/c it abriged his free speech rights under 1A. 1. 1A could be a PP to rely on, BUT there has to be a state actor involved; 1A doesn’t limit the actions of private e/rs. Dismissed for failure to state a claim… Mullis c. Mechanics & Farmers Bank =  claimed she was sexually harassed at a temp job; told her supervisor at the temp agency and at the bank, but nothing happened. After reporting the behavior, she was reassigned. She alleges she didn’t get any relief and that she has a COA for WDPP under EEPA. NOT enough =  must plead and PROVE her claim + show a PP that is violated. All she did here was cite the EEPA, and say it gave her a cause of action. EEPA doesn’t just give e/ee’s a COA for WDPP; you must still plead a CLAIM and prove it, CITING EEPA as your basis of PP that was violated! Garner v. Rentenbach Constructors Inc. = G was hired by ∆ and required to go through drug testing. ∆ sends his sample off to a lab which has represented that it is CERTIFIED for testing. s sample tested positive for MJ.  was terminated. He argues WDPP b/c the lab was NOT certified and e/r relied on that lab in its decision to terminate him. 1. NC S/C dealing with issue AGAIN of whether just citing ANY statute is enough? 2. RULE: there has to be SOME degree of an INTENT TO HARM PP (by the e/r). Here, e/r had inquired into the certification of the lab and was told it was certified. E/r simply relied on that representation. Therefore, e/ee didn’t state a claim Additional Consideration = moving from one place to another TO take a job. Does moving like this take an e/ee out of the general rule of AW empt doctrine, so that e/ee can recover in K? NC C/A seemed to accept that there is an “additional consideration” exception to AW empt. 1. Kurtzman v. Applied Analytical Industries, Inc. =  was a sales manager in Mass and was induced to come to NC to take another job. The prospective e/r promised him “there would be long term growth opportunity.”  did NOT get a written K.  worked in NC for a little while and then was fired for incompetence. He filed suit for breach of K (not under a WD theory).  argued that he had a K for a reasonable period of time, under the “additional consideration exception” to the AW empt doctrine AND that the K had been violated by his termination. a. NC S/C reversed C/A b. G/R: AW empt w/o a K for employment c. Exceptions: i. Wrongful Discharge in violation of PP ii. Express Statutory provisions (T7, etc.) under which  can bring suit iii. Contract for a specified term (oral or written) d. NO 4th Exception to AW empt doctrine exists for additional consideration 3

e. Employment Manuals: states deal w/ these & rights guaranteed to e/ees by them differently i. Roberts v. Wake Forest University =  negotiates with Athletic Director at WFU and then accepts job. No written K is obtained by . Terminated 16 months later. Was asked to take another position at WFU, but refused. He sues claiming breach of K, alleging that traditionally golf coaches are hired for long tenure & that parties INTENDED he would only be fired for good cause. He argued the EM referred to him as a “permanent e/ee” who was entitled to certain benefits. Argued the EM created K rights he could sue under to have enforced. 1. CT = EM does NOT create a K that takes this case out of the AW empt scenario. Therefore, he is an at will e/ee and e/r can fire him at any time and for any or no reason at all. Rationale behind this result: though harsh, e/ee COULD HAVE demanded a written K up front before accepting a position with WFU 2. EM does NOT create any CONRACT rights which = exception to AW empt ii. Harris v. Duke Power =  was a welder at Duke Power, who was terminated for incompetence on certain weld quality.  attached to his complaint the DP “rules of conduct” – used for managers at DP to discipline their e/ees.  argued he was discharged without cause, in violation of the EM. 1. CT = EM doesn’t take you outside of AW empt doctrine in NC. Some other state courts have said EMs could be incorporated into a K and create rights for an e/ee. BUT NOT here in NC. Result =  AW e/ee and can be terminated for no reason. iii. Salt v. Applied Analyticals, Inc. =  takes a new job in NC at a pharmaceutical company. She’d been at Burroughs Wellcome for 10 years, without a chemistry degree. She was concerned that if she were terminated, she wouldn’t be able to find a job without that degree, but was lured into the position on a representation of “job security.” She moved to Wilmington, started new job and about a year later was terminated for incompetence and for bothering other e/ees. She didn’t have a written K, but sued for breach of K and breach of implied covenant of fair dealing and WDPP. Argues she had a K based on EM. 1. CT: a unilaterally promulgated EM (by the e/r) does NOT become part of an employment K, UNLESS expressly included in the K. Ct determines that if an e/ee wants EM to set up rights for e/ee, it better say in the manual that it is incorporated INTO an EMPT K e/ee has w/ e/r AND that EM creates rights 4 e/ee 2. When drafting empt Ks for e/rs, ADD “this doesn’t create any K rights for e/ees.” 3. Court ALSO rejected a separate claim for bad faith discharge iv. Bottomline = EMs don’t create K rights for e/ees, WITHOUT an actual K of employment b/t e/ee and e/r that incorporates the manual AND says the manual gives rights to the e/ee f. BOTTOMLINE on AW empt doctrine and exceptions i. Ask first if client has a K If so, don’t need an exception to AW empt doctrine. All you have to show is that e/ee was terminated in violation of empt. K. If no K, was e/ee wrongfully discharged in violation of PP? 1. Find the PP first = statute or administrative law; UCC; EEPA; NCWHA 2. Show  was required to violate law to keep job. 3.  didn’t violate law and lost job. 4. If can plead and prove, can establish a COA for WDPP and recover PDs ii. No exception for additional consideration iii. NO exception for EMs creating K rights UNLESS its incorporated into K that says so


Courts will enforce CNCs signed 2 or 3 days after beginning work 5. After those 10 days. but was never told he would get them FOR signing it. promotion. Still governed by the CL in NC. Some states limit their enforceability and some absolutely prohibit their use! ii. $100 c. Customer lists. CNC problems arise when 1) e/ee leaves work and goes to work for a competitor AND 2) e/r wants to sue e/ee who goes to work for competitor. the longer it can be in time. in consideration for a more lucrative commission structure. Enforceable. Milholen =  is a brick company. prohibiting e/ee from violating the CNC. Be designed to protect a legitimate business interest of the e/r a. NOT violate Public Policy iii. Court lists factors for determining time/territory reasonableness: a. To be enforceable in NC. new benefit plan. Raise. He signed a CNC. Ct found the CNC to be enforceable. ∆2: he signed CNC as part of getting a promotion to become the general manager. a TRO. CLIENT will want injunction. The area assigned to the e/ee c. Be supported by consideration a. there are statutes that deal with covenant issues. The PI hearing can go anywhere b/t 10 and 60 days. Clyde Rudd Associates v. Hearing on the PI is just like a trial. so usually CNCs will expire by their own terms before e/r gets a decision from the court (b/c typically limited to 16-18 months). That nature of the e/ee’s duty and his knowledge of the e/r’s business operation 5 . The area in which the e/ee actually worked or was subject to work d. Forrest Paschal Machinery Co.g. 1. AFTER signing the CNC. Taylor = ∆ was a salesman. Covenants Not to Compete i. you’ll have to file for a preliminary injunction. Analyze together = more narrow the territory. proprietary information of company. iv. The area. Mere continued empt is NOT sufficient to support a CNC b. 1. The nature of the business involved f. Evidence is presented on the validity of the CNC w/r/t the elements.  just wants ∆s to honor their CNCs. v. the shorter the time period should be 2b enforceable by ct 3. Not enforceable as to him. a CNC must: 1. TROs only last for 10 days and are ex parte proceedings. But the broader. Be reasonable as to time and territory a. Look at what the interest being protected is and WHO has the information 6. trade secrets b. Judge then determines whether the CNC is valid and whether to grant the PI. and then left to open their own company competing with . M brothers worked there forever. 2. He did get promotions. Always look for what e/ee is getting when he signs the CNC i. v. Be part of an enforceable employment K = doesn’t have to be for a definite term 4. or scope of the restriction b. etc. Ct allows PI sought by  which prohibited  for 2 years from competing with  within a 350 mile radius of the s company. in many states. The area in which the e/r operated e. ∆1: argues no additional consideration given for his signing CNC. Be in writing 2.

He then went back to ∆ and signed another CNC. the new e/r offered to pay e/ee’s defense costs if former e/r litigated the CNC issue w/ e/ee. He was lured away from that job by a competitor again. Instead. instead of quits? 1. get a preliminary injunction b. A PI was issued. HOWEVER. Parker = pediatrician with specialty in endocrinology agreed to a 2 year CNC in connection with practicing in Mecklenburg County. 1) what is the likelihood of success on the merits (are the elements of CNC satisfied) ii. 1. Kuykendall = K was a salesman who went to work for a competitor in violation of a CNC. ix. Rule 65 = get a TRO. Nalle Clinic v. ALL of this information can be protected through CNCs. there would only be ONE other doctor who could perform the same services there. NOTE = a lot of times the degree of the specialty plays a big part in this area 4. C/A decided NOT to enforce CNC b/c against PP (w/r/t specific nature of doc’s practice). Ct doesn’t buy K’s argument that the customers’ are HIS contacts b/c he deals with them. etc in violation of CNC. sees K as an agent for UL. Rationale: if doctor was precluded from practicing in MC. On the preliminary injunction front. In NC. Does it make a distinction on whether you have been terminated or whether you’ve quit? If advising e/ee. who signed a CNC. Professional Liability Consultants. customer sales lists. Legitimate business interests include: customer contacts of e/r. This could destroy s business BEFORE the appellate court ever gets to review the trial court decision viii. However. our contact lists. AEP Industries v. Practically = interference w/ freedom to K! 6 .  wants to enforce the CNC. the  will lose out big time b/c it will take forever to get the case heard on appeal. TRO not hard to get for 10 days. c. INSTEAD of geographical boundary. Rule: You have to have a geographical reference in CNC for it to be enforceable 2. United Labs v. if they are agreeable to court. 1. W/R/T CNCs. ∆ left and went to work for a competitor. His former practice group sued him. you MUST look at the K itself. s rights = e/r’s right to make the former e/ee follow his word (CNC) during the litigation if nothing more. McClure =  is a manufacturer. Demonstrates PP element 2. a court will enforce alternatives in a K that are already there. How to advise  e/r: a. Inc. CNCs are unenforceable in empt Ks for attys: b/c of the code of ethics x. Blue-Penciling CNCs: a NC will not re-write a CNC if it is too broad or too long in time. ∆ is a salesman of s. If this right isn’t protected. the former e/ee will be out there using our trade secrets. 1. NC courts will look at two issues at the hearing: i. 1.vi. does it affect their enforceability if the e/ee is FIRED. Enforcing CNC would create a threat to public health 3. make sure to tell him to negotiate that with e/r on the front end of the deal. v. He worked for 2 years and then decided to go into private practice there. Todd = CNC in this case was tied to specific clients of e/rs (wherever they might be found). vii. and in the meantime. WHO KNEW about the CNC. customer sales information. then if things go well. 2) whether the entity is going to suffer irreparable loss if the injunction is not issued OR whether issuance is necessary to protect the s rights during the course of the litigation 1.

b. discharge or disc. Therefore. d. US S/C = look at the specific facts to determine whether s/h directors should be deemed e/ees under ADA. Examples: failure to hire OR promote. Claimed the lateral xfer was more stressful than her old job. i. privilege or condition of employment. and sex ADEA = prohibits discrimination on basis of AGE = those protected as a class are over 40 yrs ADA = prohibits discrimination based on disability § 1981 = prohibits discrimination in connection with employment Ks To determine if these statutes apply = JURISDICTION requirements i. Independent Contractors are NOT e/ees covered by these acts. NOTE = Look at time of discrimination to determine if # of e/ees makes e/r subject to T7 3. her change in employment is NOT an AEA. Factors to consider: i. just e/ees !!! ii. Title 7 = prohibits discrimination on basis of race. conditions. Employer = entity engaged in an industry affecting commerce who has 15 or more e/ees for each working day in each of 20 or more calendar weeks in the current OR preceding year for T7 and ADA. Exception to necessity of AEA: harassment claims…they have their own framework of analysis and DON’T require an AEA 4. however. religion. ADEA requires 20 e/ees. 5. Statutes designed to deal with only those who’ve suffered from an AEA 2. national origin. Should s/h directors (or partners) be counted as e/ees for # purposes? a. Boone v. b. Core Employment Discrimination Statutes – MAJOR EXCEPTIONS to AW empt doctrine = ALL STATUTES prohibit various forms of discrimination in the workplace a. Result: NASA is covered by the act. Can the organization fire the person? ii. her claim must be dismissed.II. and privileges of employment must be rewarded w/o regard to sex. c. How do you determine the # of e/ees an e/r has? a. e. Whether the person shared in the profits and losses of the organization? vi. Hishon v. If  can prove her allegations (that she was discriminated against by her e/r b/c of her sex). Metropolitan = Look at WHO is on the payroll for 20 calendar weeks. 7 . POINT = if a person is an OWNER of a company. Does the organization have the authority to supervise the individual’s work? iii. Walters v. King & Spalding = Whether denial of opportunity to be considered as a partner is a denial of a privilege of employment? Result: Can constitute an AEA action. Does the individual report to someone higher in the organization? iv. Is e/r covered by the act? 1. Don’t necessarily look at whether each person on the payroll was actually working on every working day during those 20 weeks. 2. in compensation 3. Is there an adverse employment action (AEA)? 1. Terms. color. he may be able to escape being counted as an e/ee for jd purposes… 4. that is sufficient to be an AEA for which she might prevail. Goldin = claimed discriminated against when reassigned within NASA. Whether the individual had the authority to influence major decisions within the organization? v. The move from associate to partner is a term.

ADEA. Regulations DON’T have the force of law. Cause Finding = probable cause to believe violation occurred a. EEOC notifies e/r w/i 10 days and provides a copy of charge iii. 4. color. ADA 1. ii. religion. Administrative Law foray: agencies make rules either through 1) adjudication OR 2) rule-making. EEOC or the private party can bring suit against the e/r 8 .iii. can’t raise other reasons for the charge once getting into court. Under adjudication – the federal circuit court level will use the substantial evidence standard for findings of fact. but will grant extensions if requested by e/r iv. Has the EEOC charge process been complied with. it will notify e/r and attempt to being settlement discussions OR if e/r doesn’t allow settlement discussions. EEOC has 180 days to investigate a valid charge v. 2. EEOC separates the charges into those a) involving protected classes. 2. In rule-making. 70-80K charges of discrimination are filed every year. Unable to determine based upon the information obtained that there has been a violation. Either way. if necessary? T7. b) those that are facially invalid. At this point. NO. It also issues interpretive guidance and policy statements. Non-Deferral States = including NC i. Scope of charge will limit what can be litigated in federal ct. there is deferential review to facts and a de novo review of issues of law 5. and c) those that should be investigated. EEOC Charge Process is Different in Deferral and Non-Deferral States a. EEOC is made up of 5 members (Chairman is always member of President’s party). Response generally explains why there has NOT been discrimination + provides attachments to support that contention 3. and any comparative information it may have (depending on nature of charge at stake) 1. It has limited rule making authority. If  gets through charge process. issues of law are reviewed de novo. their rules are subject to judicial review. E/r asked to respond w/r/t its # of e/ees. (Doesn’t mean there hasn’t been a violation) 2. EEOC issues decision = EITHER… 1.  must include BASIC details of why he/she contends discrimination occurred.  files a charge of discrimination with EEOC within 180 days of the discriminatory act (applies in every county in NC now) 1. but courts seriously consider them as part of their analysis. THINK notice pleading = why does  feel he/she has been discriminated against on basis of race. but does issue regulations in connection with these Acts. Anything atty says on behalf of e/r = admission of e/r 2. EEOC always attempts to get e/r to settle through mediation or reconciliation first 3. EEOC gives specific amount of time w/I which this response must be made.

federal government may not have to get involved at all. Same process. get a copy of that in the courtroom b. Morgan = M had a race discrimination claim + racial harassment claim. EEOC clock starts ticking on date of AEA b. Example:  files a charge alleging denied 4 promotions based on his race = 2 years ago. Evans = in a deferral state. Rule: date the AEA is communicated to  is the date of discrimination b. whichever is earlier ii. a. failure to promote or termination). If you do file in a deferral state and there is a state law SOL that is shorter 9 . The fact that R continued to receive salary doesn’t eliminate the AEA. In September of 1974 the internal grievance was denied. CAL is a deferral state. you have 180 days to file a charge (in ND states) PERIOD. a. You have to look at whether the acts are part of the same acts of harassment (same supervisor. Right to Sue Letter a. internal action. As atty for e/r. As . if a NO cause finding is issued to . f/e. He didn’t file timely = he missed the 180 day requirement by a couple of months. He filed an internal grievance.  wants to recover for all 4 failure to promotes. When did the discriminatory act occur? 1. i. They offered him a terminal contract for one more year. the BOT accepted the recommendation to deny him tenure. v. some circuits LET the  pursue claims more than 180 days old. if they were somehow related (like if  had the same supervisor that kept denying his promotion requests) ii. make sure to have this as evidence in court b. Court also held that hostile work environment claims don’t happen in a single day. Cases from Deferral states: MAJORITY rule 1. As atty for  write EEOC and get all investigation information collected d. though. Ricks = R wanted tenure but it was denied to him. They have state agencies charged with enforcing state wide equal opportunity employment laws or designed to deal with empt discrimination issues iv. In April of 1975. he filed an EEOC charge. DE State College v. Oscar Meyer v. In March of 1974. Rationale: if state goes through its own conciliation process and does its own investigation.3.) LOOK at the TOC. Significance: Once you are told you’ve been denied a promotion. BUT you must file charge with the EEOC within 300 days of the discriminatory act OR within 30 days of NOTICE from the state agency that it has terminated proceedings. BOT tendered him a 1 year K. Deferral States i. National RR Passenger v. 100 days ago and 20 days ago. Rule there: w/r/t discrete acts of discrimination or discrete AEAs (ie – failure to hire. Before this case. 20 months ago. Result: action dismissed here. The discriminatory act occurred when R told he wouldn’t have a job after the next year (June 1974). 2. He declined that K and brought a claim for discrimination based on national origin.  must commence proceedings with a state agency. In June of 1974. Acts of harassment that are more than 180 days old aren’t necessarily in or out of consideration. Starts 90 day clock to file suit c. Most states are deferral states.

you lose your right to sue under the theory = can’t add something in court that’s not on charge c. He got it verified on day 313. b. Brown = lawsuit must be filed within 90 days of receiving right to sue letter. then the federal charge will revive… 3. religious and NO discrimination. so as to have time to get the claim filed in federal court in case the state ceases its proceedings. Allegations beyond the scope of the charge will be dismissed in court b. instead of the date on which you receive it. a. look at date on RTS when you get it and plan on filing 80 days from that date. If verified later. 4. so OC doesn’t have potential defenses to your claim. you want to file a charge with the state agency BEFORE the 240th day. NOTE = statute doesn’t mandate charge be sent to e/r until its verified. Generally. Mohasco v. NOTE = you can file charges with the state agency AND file in federal court at the same time. the federal SOL isn’t precluded 2. WHERE do you file these actions? 1. clearly too late. PREVENTIVE law = get the form off the website and be with your client when he/she fills it out. e/r has received prompt notice of filed charge AND EEOC must keep e/rs informed of the progress of the action after commenced. It doesn’t have a SOL within which it has to sue an e/r. c. verification will relate back to date charge received. Silver = recognizes that a state agency in a deferral state is going to have exclusive jd for at least 60 days.than the federal SOL for discrimination under these acts. This way you’ll make sure to not be thrown out of court. most ∆s will seek removal to federal court based on FQJD (federal statutes involved) 2. Claim EEOC has waited 7 years or more to sue e/r and as such has sat on its rights too long. What is a charge? US S/C noted that EEOC had a regulation that allowed the relation back of a verification (outside 300 day limit). Baldwin County Welcome Center v. Have it verified then. When state proceedings are ceased. So. Edelman v. EEOC = EEOC is not bound by the 90 day requirement to bring suit. T/C = a timely charge requires a timely verification. Can file in either State or Federal court. He alleged sex. although state courts have SMJ to hear these cases. Too late here. vi. Court agreed with the regulation. Lynchburg College = E denied tenure. Technologies Applications a. even in a deferral state. He wrote a letter to the EEOC alleging this discrimination but it wasn’t sworn. 180/300 day rule is an issue of timeliness in getting charge into EEOC. Evans v. You can supplement your charge if you realize something is missing along the way however 10 . RTS letter is presumed received 3 days after mailed. If you ignore the administrative process of the EEOC. 5. Practically. Occidental Life Insurance v. The one potential defense of an e/r = LACHES. BUT. remember.

T/c found that e/r had engaged in some discrimination and so had union against s. T7 does have PD caps based on the size of the e/r. sex or national origin.  still has to plead and prove race discrimination. 3. why didn’t it also fire the black man for theft?) ii. or limit on PDs that can be awarded. Martin Marietta = MM had an empt policy where it wouldn’t accept job apps from WOMEN with pre-school age children. T7 and 1981 don’t allow a union to refuse to file any and all grievances presented by a black person on the ground that the e/r looks with disfavor on and resents 11 . the union didn’t do anything. discipline record. b/c the specific women at issue may not live longer. When they filed grievances with their union. think about 1981. Females brought a class action. Union still processed grievances of non-African American e/ees differently than African American e/ees. race. ii. Goodman v. and therefore more money would be needed to support them later in life. 9C affirmed. T7 and whether you have a potential state claim (under empt at will exception) 4.III. T/C and 5C affirmed MMs policy. The deliberate choice NOT to process grievances based on racial claims is itself discriminatory. 3. good faith doesn’t negate a racially motivated decision. 1981 can also be filed in state or federal court. allegedly to promote the greater good of ALL the members of the union. McDonald v. White men were fired and filed a charge with EEOC on basis of race discrimination under T7 and § 1981. color. i. didn’t apply to men with pre-school age children OR women without pre-school age children. Rule: just as good cause isn’t a defense. POINTS of this case: a. US S/C reversed per curiam (without hearing arguments or getting briefed)…Facial violation of T7 b/c it treats men differently than it treats women. Discrimination / Improper Motivation / Defenses a. Union claimed it was acting in good faith in the interests of all of its members. 1 black). WHEN a race discrimination claim comes up. Facial violation of T7 b/c it draws a distinction based on sex b. Role of Motivation and Good Cause i. Phillips v. Good cause for terminating someone (ie – theft) is not necessarily a defense to a T7 action…(if e/r thought it had a good reason to fire white men b/c of the theft. religion. 2. To prevail. 1. US S/C emphasized that focus of T7 is on the individual = no defense that as a class women generally live longer. Luken Steel = 2 steel workers brought an action against e/r AND their union alleging race discrimination. 1. or to expel from its membership. 1981 applies to all persons – but still have to prove complaint based on race. Rule: T7 applies to discrimination against white folks and black folks 2. c.  must show he is similarly situated in all material respects with the comparator (person s comparing himself to) (in seniority. and to avoid tension b/t the e/ees and the e/r. Difference b/t 1981 and T7 claims: 1981 doesn’t have a limit on size of e/r. or otherwise to discriminate against any individual b/c of his race. Aside = T7 applies both to e/rs and to how unions treat union members = it is an unlawful practice for a Union to exlude. i. T/C ordered a refund of all contributions made. City of LA v. The Union discriminated on the basis of race by the way in which it represented the workers. LA defended by claiming it used sex as a proxy. Manhart = LA had a policy where its female e/ees paid more into pension fund than did male e/ees based on rationale that females live longer. not to discriminate. Santa Fe Trail Transportation Company = 3 men were charged with misappropriating anti-freeze from e/r (2 white. time period)… b.

 sued and Western pled the BFOQ defense. national origin. 2. No less violative of these laws for a union to pursue a policy of rejecting disparate treatment grievances presented by blacks solely b/c the claims assert racial bias and would be very troublesome to process. RULE: Look at occupational requirements of the job in determining whether the classification is reasonably necessary to the normal operations of the business a. Inc. Rule: when dealing with safety issues. Court = rejected defense. =  fired b/c didn’t meet e/r’s height and weight requirements. Western argued as a class 60+ workers could affect the safety of their passengers. The “safety exception” (rationale that safety of passengers f/e above required policy of under 60 workers) is LIMITED to instances in which sex or pregnancy actually interferes with the e/ee’s ability to perform the job 12 . Defense an employer may plead and prove wherein the e/r is permitted to classify its e/ees (including applicants) on the basis of religion. Even though job open to women only. Requirements were in place to present travelers with attractive fight attendants. Johnson Controls. e/r must prove there are unacceptable risks to IT as an e/r OR to 3Ps in retaining the person as an e/ee iii. COURT: this is facial discrimination under T7 (based on a woman’s pregnancy or ability to become pregnant). Defense must be specifically pled by e/r in the answer ii. She filed a charge of sexual discrimination. Western also applied that policy to flight engineers. Criswell = mandatory retirement age for captains and first officers of 60 (have most control over flying the plane). 3. United Auto Workers v. Distinctions based on sex must relate to ability to perform duties of job b. Justifications for Express Use of Prohibited Classifications: Bona Fide Occupational Qualification Defense (BFOQD) i. NOTE = race and color are NOT included 2. 1. Also available as a defense to ADEA claims 3. The only potential defense = BFOQ. Kept the AOR policy in place for men. 1.  argued the focus should be on the individual. d. iii. Again. It then changed policy to EXCLUDE women who were pregnant or were or child bearing age from holding jobs in close connection to the lead production. 1. Defense construed narrowly and e/r must plead and prove it 2. where one of those qualifications is a BFOQ reasonably necessary to the normal operation of the particular business. Only women were allowed to pursue this job at the time. 4. courts will narrowly construe the defense.  retired at 60 but wanted to keep on working as a flight engineer.such grievances. If women knew about it and decided to expose themselves to it anyway. the risk was borne by the women. Western followed a FAA regulation that prohibited those over 60 from being captains/1Os (health reasons + public safety in flying). Continental Airlines. Result: Danger to a woman herself doesn’t justify discrimination. Group of female e/ee’s sue for sex discrimination. Western Air Lines v. also if you weren’t of child bearing age or were a sterile woman you could hold job. Continental argued that physical appearance is not regulated by T7. requirements imposed by e/r discriminate against women b/c there are no similar requirements for men. sex. = E/r initially had an “assumption of the risks” policy in place w/r/t lead production at its plants. 1. Gerdom v. Rule: don’t look at person as a member of a class where you are reasonably able to perform an individualized assessment. Inc. He was rejected from employment b/c of his age.

13 people get selected for the jobs = 7 of them black. Transportation Agency = AA plan required men to be passed over for promotion so that women could be promoted. May be another defense that an e/r can use to a facial claim of discrimination under T7 ii. Is it permanent? 3. races are protected equally under the statute. b. United Steelworkers v. US S/C: T7 doesn’t prohibit VOLUNTARY race conscious AA programs like this one IF they are valid. Framework for analyzing AA plans is probably different under Constitution than under T7 iii. Does it create a bar to advancement w/I company of one race? iii.is the classification reasonably necessary to the normal operation of the particular business? i. E/r pleads BFOQ. W is not one of the others selected for the job opening. consider: a. NOTE: Business necessity defense applies to disparate impact cases iv. Stynchcomb = Sheriff takes a job application from  and TELLS her he won’t hire her for the job BECAUSE she’s a woman (b/c the first assignment will be to work in the men’s jail and sheriff had some concern over privacy issues of the prisoners). In analyzing whether AA plans are valid. and to advance empt opps for minority groups. Case opened door for court to order AA remedy after hearing on merits b. If classification doesn’t affect the person’s ability to do the job. e/r can only look to BFOQ? b. don’t apply BFOQ? ii. Whether the AA plan mirrors the purpose of T7? i. Weber = 50% of e/r’s craftsman job openings were to be reserved for blacks UNTIL the # of blacks working for the e/r was commensurate with the local labor force. but it doesn’t work. religion or national origin? i. W/r/t BFOQ .  mad b/c a woman got job he applied for. T/c and 5C held for W.. 1. Analysis: a. BFOQ is OK. If so. Justifications for Express Use of Prohibited Classifications: Affirmative Action Plans i. 1. BFOQ isn’t any good. 2. Defense no good here because: sheriff had a hard time proving that there wasn’t another way to align the duties of the deputies in the men’s jail so as to allow a woman to work there AND he hadn’t applied the “new hire will go first to men’s jail” policy before either e. 1.3. It was NOT intended to prohibit private e/rs from taking steps to affirmatively abolish race discrimination. She files charge of sex discrimination. If classification will affect person’s ability to do job. As one factor to consider. Does it require discharge of one race so that another can be hired? ii. an e/r was permitted to look at sex where there was a significant under-representation in the particular job category or application. City adopted plan to remedy past societal practices in connection with empt practices towards women. Claimed sex discr. T7 was intended to eliminate various types of discrimination in the workplace. Whether the AA plan trammels the interest of the non-minority e/ee? i. Rule: BOP the invalidity of AA plan is on the  e/ee. He had a marginally higher test score and more experience in the field. Is there a FACIAL classification based on sex. Hardin v. Focus should be on the ACTUAL job qualifications involved AND the facts of the case ii. NOTES a. If not. Johnson v. 2. Prove the plan’s invalidity by the standard/test set forth in Weber 13 .

Result:  lost. Didn’t trammel the employment opportunities for men.  not fired and plan only temporary until target reached. 14 . The AA plan mirrored T7’s purpose in that it advanced employment opportunities for women.2.

B was given option of dismissal OR return to lineman job he’d held previously. Whether actually directed at  and related to the decision at issue or was it some age/sex/race based comment that wasn’t directed at  and that was remote in time? e. For a finding of liability. case may make it past SJ stage to the jury to determine if discriminatory? d. 15 .IV. ii. Direct evidence of discrimination a. Comment made = “I hate having %$#@^&* women in my office. She didn’t get it. O’Connor =  complained e/r terminated him b/c of his age. ct looks at: a. c. allegedly b/c she’d messed something up in the office. Context of the remark = does  concede in jest? c. When made = how close to decision? d. NOTE – important to pay attention to WHO is making racially derogatory comments in the workplace. Alleged racial discrimination. it needs to be someone in a decision-making capacity b/c our focus is on Adverse Employment Action. Comments: 1) you’re too old for this kind of work (2 weeks before decision). ADEA or ADA = 2 methods = different remedies apply a. He’d been promoted to a supervisory position. UTDOT =  worked in office area of DOT and attempted to get some training for a job promotion. Heim v. ii. After the amendments allowing for a jury trial. Whether the statement directly implicates a protected category? b. issue arises = is comment enough to get the issue to the jury… 1.” i. Statement NOT direct evidence of discrimination b/c it related to e/r’s feelings about women in general. He declined prior job and was terminated. Rare b/c more likely case will settle before going to trial b. Was it made by the decision-maker OR one who played a substantial role in the decision? f. Can be proved in two ways 1. Supervisor ALSO played an impt role in making the empt decision that affected . Discrimination / Disproportionate Exclusion HOW to prove a discrimination case under T7. issue wasn’t allowed to go to a jury trial. In determining whether a comment is a stray remark OR direct evidence of discrimination. NOTE = if court finds NOT stray. 2) it’s about time we get some young blood around here (2 days before decision). After a customer complaint. His racial animus was reflected through comments he’d made over the years and was sufficient for a finding of racial discrimination. East Miss Electric Power Association = black man worked for ∆ for 20 years. B had evidence that his supervisor used RACIAL SLURS during course of B’s empt with ∆. Brown v. NOT this particular woman. Direct evidence of racial discrimination proven by ways the statements were made. When case decided. Disparate Treatment = INTENTIONAL DISCRIMINATION i. i.

NOTE = can get PDs under T7. non-discriminatory explanation for the action. After the rejection. ∆ claims he was subjected to severe discriminatory actions. i. s more often rely on this framework for proving discrimination occurred b. ∆ was a correctional officer.  has ultimate burden of persuasion/proof a. culminating in discharge. Mary’s Honor Center v. Burdine =  had a failure to promote claim. it creates an evidentiary presumption of intentional discrimination. OR comments that were racially derogatory… ii. who weren’t written up for those violations.i. the evidence that can be used by  to persuade jury is the p/f case. E/r has burden of articulating a legitimate. Afterwards. Once articulated. just that he applied and didn’t get the job. Statements not made in context of replacing O 2. do discovery ii. Once presumption drops. Employment changes occur and a new supervisor is promoted over ∆. the presumption of intentional discrimination is dropped. e/r showed legit ND reason (accumulation of rules violations which culminated in a heated xchange with supervisor). Didn’t have any direct evidence. McDonnell Douglas: black e/ee organized and participated in a walk-in against e/r – was a civil rights activist. Has  suffered an AEA? 3.  has the ultimate burden of PROOF and PERSUASION on discrimination 2. he was. STATEMENTS NOT direct evidence of discrimination despite their proximity to decision. Prima Facie case of intentional discrimination: 1. ∆ showed P/F case. To show that e/r’s reason is pretextual. did the position remain open. ∆ had a good empt record. Before this time. i. TX Dept of Community Affairs v. iii. Subsequent to that she was terminated. Alleges both decisions based on sex. He had p/f + extra evidence. St. Was  qualified for the job he applied for? 4. Most of the time the court will look beyond p/f case to see if there were similarly situated persons treated differently. McDonnell Douglas INDIRECT evidence method of proof of discrimination a. 16 . but they are capped d. NONdiscriminatory reason for action (burden of production) 2. ∆ shows some of the rules violations were for HIS subordinates and that unlike other supervisors. He claims race discrimination b/c he didn’t get rehired. Hicks =  is a halfway house. BOP shifts to e/r to articulate a legitimate. Case clarified the burdens imposed on the parties once p/f case presented: 1. He got fired after a layoff and reapplied for another job there. statistical evidence c. NOTE – establishing P/F case doesn’t get you to the jury. If P/F established. BOP shifts BACK to  to prove by PPE that reason put forth by employer is pretextual (a mask to cover discrimination) 1. Is  a member of a protected category? 2. with e/r continuing to seek applications? 5.

Rule: if e/r can show the same decision would have been made anyway. Reeves =  worked for company for 40 years. she was also told she was “too macho. needed to take a course at charm school. SO claim couldn’t get to the jury b. She was fired after an altercation with a co-worker.” Claimed sex discrimination in denial of partnership. based upon the legitimate reason. 1. Desert Palace v. 4C = there was evidence to show that original reason was pre-textual. but was deferred for a year. 5. Evidence that “legit” reason was pretextual is enough i. etc. He lost. E/r must prove this affirmatively. co-worker was sent home for 5 days only. but there was no additional evidence that AGE had anything to do with the decision. Pretext Plus standard = have to raise a genuine issue of material fact that alleged legit reason is pretextual + have some evidence that real reason for action was discriminatory i. Costa =  was a warehouse worker at Ceasar’s palace. But then. She had a series of problems with co-workers and management. however.i. Plaintiff showed PRETEXT. Metrohealth =  supervisor had to make a decision for a position b/t a 45 year old woman and . NO liability will result. b/c she was abrasive with staff and subordinates (although a really good acct). Ct looked at the qualifications of the 2 women. When told she wasn’t going to make partner. Doesn’t mean just showing reason pretextual will allow  to win. He was eventually fired. T/C = .. No evidence of age discrimination under P+. US S/C: a p/f case + sufficient evidence for a juror to reject the alleged ND reason is enough to sustain a finding of liability. What if e/r has two reasons for AEA = one legit and one non-legit? b. Mgr just made a subjective decision. a. 5C said there was enough evidence to find “legit” reason to be pretextual. 1. JURY still decides liability 4.and they used “following the procedure set forth in their manual” as their legit ND reason for the action. but not enough to show that AGE was the real reason for the action (applying pretext +). NO requirement for the PLUS! a. Vaughn v. overcompensated for being a woman. the decision maker admitted in a deposition that he hadn’t even read the manual and that instead he based his decision on personal experience. he alleges for age discrimination. US S/C: proving e/r’s reason is pretextual doesn’t automatically entitle e/ee to a verdict as a matter of law. Claims sex discrimination. A jury or judge can certainly INFER from a finding that the “legit” reason is pretextual. What exactly has to be shown to get past SJ stage and to the jury? Circuits were split a. that prohibited discrimination was the real reason for the action. should wear make-up. while e/r says it was for falsifying attendance records. but not the +. Hopkins =  wanted to be a partner. 3. Company had produced a manual on how to downsize . Price Waterhouse v. no age related comments made by decisionmaker. T/C instructed jury that if her sex was a motivating factor in 17 .

US S/C looked at requirements needed before giving mixed-motive jury instructions. d. you don’t have to have direct evidence of prohibited discrimination any longer.  might not get any front or back pay. you had to have DIRECT evidence of prohibited discrimination in order to get a mixed-motive instruction (ie – “you need to act more like a lady b4 you’ll become a partner. Court’s result: it was appropriate for  to get a jury instruction where jury is asked whether sex was a motivating factor and if it was. then the e/r was liable. BUT you can still get backpay (calculated from date of unlawful discharge to date of actual discovery of new information). regardless of the unlawful consideration. BUT. Significance of case: when representing e/ee. E/r didn’t object. AAE doesn’t bar discrimination claim. Company argues it would have fired her anyway for copying the confidential documents. Doctrine of After-Acquired Evidence: McKennon v. it must FIRST establish that the wrongdoing was of such severity that e/ee in fact would have been terminated on those grounds alone if the e/r had known about the behavior at the time of discharge. it will limit the relief that a  can obtain. In 1991.” She was then fired as part of a RIF program.) c. but that decision would’ve been made anyway.the adverse empt action. ensure the language in jury instruction has this language: whether sex was a motivating factor in the empt decision 6. 18 . Nashville = secretary afraid she might be fired because of her age so she copied some confidential documents as “insurance. the e/r is liable. Court also gave a mixed motive instruction = if sex was a motivating factor. Secretary claims age discrimination. a. you are to return a verdict for . ∆ objected claiming there was no evidence. b. (IOW = even though a  might get a verdict that she’d been the victim of sex discrimination. Rule: where e/r seeks to rely on AAE of wrongdoing. BUT it will effect e/ee’s remedy. even if ∆ was motivated by other lawful reasons. Until this case.) b. Congress provided by amended that if a  is able to prove that an unlawful consideration was a motivating factor for the empt action. if the e/r can prove the same decision would have been made. RULE = to get a mixed-motive instruction. Can’t get frontpay OR be reinstated. no statements and jury shouldn’t have gotten the mixed motive instruction. Company didn’t find out she had the documents until after her termination. a. then  is entitled to a verdict in her favor even if the ∆s actions were motivated by a lawful reason e.

L complained and the mayor put L and another woman into the training program. i. BUT the fire chief REFUSED to hire them b/c they failed the physical agility test. the practice is prohibited. Notes on DI cases: 1. 2. L produced evidence that the hose pull and obstacle course were heavily dependent on upper body strength which the AVERAGE woman didn’t possess.b. ii. Empirical or criterion validity (demonstrated by identifying criteria that indicate successful job performance and then correlating test scores and the criteria so identified) 19 . resulting in disparate impact on women. 1. Can’t make a DI claim against a governmental entity regarding race disc 3. All DI cases are bench trials. T7 prohibits practices that are neutral in form but discriminatory in effect. Common examples of DI: aptitude and intelligence tests. a facially neutral testing procedure violates T7 if it disproportionately excludes female applicants from the hiring process and is not justified by business necessity. Second stage involved a physical agility test. Proving a DI case = the burdens: a. it violates T7 UNLESS e/r can show that practice is job-related and consistent with business necessity iv. E/r must show the procedure is job-related and consistent with business necessity. G/R: if a neutral practice excludes a disproportionate % of a protected category.  must show e/r uses a particular empt practice that causes a DI on basis of race.. NO female applicant passed this stage.  might then show that there is an alternative selection procedure that doesn’t have the same discriminatory effect vi.you have to prove intentional discrimination 2. E/r can do this in 3 ways: 1. Griggs v. Rule: any requirement MUST have a manifest relationship to the empt in question. 2. Disparate Impact = Policy has adverse impact on someone in a protected category i. though many passed the other two. Under DI. NO DI cases under § 1981 . vii. Legault v. ii. tests operated to exclude black people from getting promotions OR at least it affected them disproportionately than other races 1. A showing of intentional discrimination is NOT required b. found that NEITHER the high school completion requirement NOR the general intelligence test was schown to bear a demonstrable relationship to successful performance of the jobs for which it was used. can’t recover PDs (only FP. iii. Apparently. Result: ALSO.  must establish a p/f case by demonstrating that a particular testing procedure disproportionately excludes women i. education or work history requirements. How to prove a DI case: 1. BP or injunctive relief) v. 2. One man was excused from the selection process and was offered a training position without having to take any of the tests. They finished first and second academically. garnishment records. Defendant has a potential defense = attempt to persuade court that the challenged practice is job-related and consistent with business necessity 3. If an empt practice which operates to exclude someone in a protected class can’t be shown to be related to job performance. etc. Duke Power = e/r required a hs diploma and passing 2 aptitude tests before an e/ee could get a promotion. religion. color. Most of the men applicants passed the test. arrest records. Arusso = 3 part test to become a firefighter. or height/weight/strength standards.

Union officials also made a lot of racial slurs. 1. Rule: T7 forbids the use of employment tests that are discriminatory in effect UNLESS the employer meets the burden of showing that any given requirement has a manifest relationship to the empt in question a. ix. White e/ees had a higher passing rate.  may STILL establish a T7 violation by showing that the e/r has refused to adopt a readily available nondiscriminatory alternative to the challenged practice Daniels v. would also serve the e/rs legitimate interest. so they lose. E/r didn’t show that. E/r attempts to show tests are job related 1. BOP shifting i. White supervisors used their subjective judgment in making promotions. Construct validity (demonstrated by examinations structured to measure the degree to which job applicants have identifiable characteristics that have been determined to be important in successful job performance) 3.  sued for DI and DT. 1. v. Company attempted to validate tests. Rule: discriminatory tests are impermissible UNLESS shown.  can challenge subjective hiring or promotion practices under DI model: 20 . Teal = written exam requirement.  shows p/f case (has shown tests select applicants for hir or promotion in a racial pattern significantly different from that of the pool of applicants) ii. without a similarly undesirable racial effect.  can STILL attempt to show that other tests or selection devices.viii. by professionally acceptable methods to be “predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated” iii. HERE – fire department had failed to update the job requirements and had failed to validate the testing procedures through an expert c. The procedures the union used had a DI on blacks. You have to look at the empt practice that is discriminatory.) 1. CT = to demonstrate content validity an e/r MUST show its testing procedures accurately test important skills at a level commensurate with that legitimately required by the job 2. Moody =  gave IQ tests and had hs diploma requirements. x. ∆ argued content validity 1. Fort Worth Bank = black female e/ee passed over four promotions. xi. Rule: union has a duty of fair representation Albemarle Paper Co.) ii. 1. US S/C = rejected BL defense. E/r argues Bottomline Theory of Defense (they had an AA plan where they hired a certain amount of black e/ees regardless of whether they passed the test or not. Content validity (demonstrated by tests whose content closely approximates tasks to be performed on the job by the applicant. This practice had a DI. but failed to look at the specific job skills. (This type of showing would be evidence that e/r was using tests merely as a pretext for discrimination) Connecticut v. Pipefitter’s Association = Union operated a job referral service. 2. Watson v. Even if e/r meets that burden. so ∆s had burden of showing job-related.

) 2. Ward’s Cove v. If the pool from which e/r is doing the hiring is mostly NON-white.a. ∆ then has burden of producing evidence that its practices are based on legitimate business reasons d. Non-cannery jobs were skilled positions that paid more. Handout on BOP in DI cases 21 . RULE: if absence of minorities holding such skilled positions is due to a dearth of qualified non-white applicants (not e/rs fault) the e/r’s selection method or employment practice can’t be said to have had a DI. 1. (IOW – comparing the racial imbalance b/t these two job categories is NOT evidence of discrimination. You must look at the qualified labor pool. and were given mostly to whites.  must ID the specific empt practice(s) that is “responsible” for statistical disparities b.  then must show that other tests or selection devices would have served the e/r’s legitimate interests xii.  must prove causation = that practice CAUSED the disparity (done through statistical info) c. then its not surprising that positions are filled mostly by non-whites. Non-cannery and cannery personnel lived and ate in separate quarters. Atonio = Cannery jobs for unskilled laborers were given mostly to nonwhites.

Must be some evidence which justifies holding the e/r responsible for the behavior of its e/ees. At time conduct occurred. Ferreger v. Potential defense of e/r = promulgation of an anti-harassment policy c. Essex Group = Racial harassment: dummy hanging from doorway. Was discrimination severe or pervasive? 4. ADA. racial graffiti. Tangible employment action taken as a result of harassment? i. and must have regarded the activity as undesirable. e/ee must have subjectively believed his work environment to be hostile = subjective 5. E/r can prove he used reasonable care to prevent and correct promptly the sexually harassing behavior 22 . City did have a SH policy. Look at Objective and Subjective tests b. Mgmt did 0 when D complained. Whether the conduct was physically threatening or simply rude iv. a. IF: 1. He was the only black person working in part of facility. 3. ADEA b. E/ee must not have solicited or invited the activity. Applies to T7. E/ee was subjected to racially offensive acts or statements. City of Boca Raton = lifeguard complained that 2 of her supervisors had made improper sexual comments and advances towards her. Conduct was unwelcome. 7. i. She quit her job and sued the city and the individual ∆s under FL state law. When can you hold an e/r liable for the acts of an e/ee? ( can’t sue co-worker under T7) i. Factors to consider: i.V. 1. Frequency of the conduct complained of ii. (Recall – T7 claims have to be brought against e/r. teasing. Elements = must prove ALL these elements to prove harassment by PPE. Daniels v. 1. Effect the conduct had on s emotional well-being c. Rule: e/r that seeks to avoid liability for SH has an affirmative defense where there is no tangible AEA taken as a result of the harassment. 6. Conduct must have been based on the individuals race and resulted in a work environment so filled with discriminatory intimidation. Framework will be the same to determine whether the individual was subjected to a hostile work environment d. Severity of the conduct iii. cursing or rudeness (prohibits discrimination based on protected categories). T7 doesn’t prohibit: all verbal or physical harassment in workplace (just harassment based on protected categories). Harrassment a. all abusive language. TOC test b. NOTE a. Was there a HWE based on sex? i. BUT the Marine Safety Division never got a copy of it. not supervisor). Reasonable expectations of  unpon entering a workforce v. at least one of which occurred within 180 days (in NC) of filing of EEOC charge 2. Elements will be the same regardless of the type of harassment b. US S/C analysis to determine whether HWE existed a. ridicule or insult that it materially altered the conditions of employment. Conduct must have been sufficiently severe or pervasive that a reasonable person would find the environment to be hostile = objective a.

Later she did write in saying she was SH. S complains about Mr. including his termination. If e/r did know or should have known about coworker on co-worker harassment. That  e/ee failed to take advantage of any preventive or corrective opportunities to stop the harassment a. an e/r is NOT going to be liable c. Ultimately. Ellerth =  was an e/ee who alleged three distinct time when supervising e/ee made offensive remarks and gestures towards her. which could have been determined to be threats against her denying tangible job benefits to her. ii. No liability for e/r if allegations aren’t necessarily substantiated. If YES. J’s comments. Promulgation of a policy against SH if policy has been communicated to e/ees and if policy provides an avenue to avoid complaining directly to person who engaged in the harassment (BYPASS procedure). If e/r didn’t know of co-worker harassment and shouldn’t have known about it. b. not mentioning in a letter that she’d quit b/c of SH. If yes = no liability ii. Did e/r have a policy prohibiting SH? YES 2. then e/r won’t be liable b. 23 . FRAMEWORK for Harassment: Did actionable harassment occur? a. regardless of the comments by the supervisor. and the policy doesn’t allow  to go talk to someone else about it who can take action. If NO (ie – it’s a co-worker) you get into a negligence standard 1. Example: co-workers working in a plant side by side. 1. If NO. She quit her job. This would be an immediate and appropriate corrective action. she got the promotion. e/r hasn’t taken reasonable care to prevent SH. did the e/r take an immediate and appropriate corrective action? i. Objective and subjective tests looked at on TOC basis b. Mrs. it would be impossible for the City to prove its affirmative defense. ADVISE clients (who are e/rs) to draft a straightforward policy w/r/t all unlawful forms of discrimination + to provide a bypass procedure 2. F/e – if the supervisor you are supposed to talk to about harassment is the one who harassed . Since policy was never seen by the Marine Safety Group. Those comments are investigated and substantiated. If no = e/r could be liable iii.a. Did e/r know of harassment or should he have known of the harassment? a. was the harasser an immediate or successively higher supervisor? i. Burlington v. E/r takes corrective action. Look at whether e/ee used the policy in place to seek redress within the company for the harassment suffered 2.

Did actionable SH occur? YES – look at the conduct alleged + O/S tests b. 1. vi. CONSIDER: i. She also alleged that subsequently she was shuffled around within her office.  reported to supervisor. Did e/r know of SH or should it have known? YES. By a supervisor? NO. Can e/r show the affirmative defense to avoid liability? Depends on whether AR state agency can show 2 prong factors above. Rotary = e/r required  to wear sexually suggestive attire to work. By a supervisor? YES 3. Inc. Did e/r exercise reasonable care to prevent and correct promptly the sexually harassing behavior? AND ii. They met at a nonmandatory meeting in his MOTEL room at a conference. bulk of SH was by co-workers 3. an e/r would then have the opportunity to show the affirmative defense to avoid liability a. b/c supervisors were present at time comments and conduct occurred 4. think whether jury would believe the facts as alleged by ) 2. admits she QUIT her job b/c her husband was being xferred across the country d. If yes. If YES. e/r liable without an opportunity to establish affirmative defense Stacks v. If no. e/r could be liable Brown v. Did harassment culminate in tangible AEA against ? NO . whether promulgation had been published to Pres and his subordinates AND whether  complained under system OR used a bypass procedure to complain Preist v. Did e/ee take advantage of systems implemented to prevent harm? iii. At the SJ stage.  is e/ee of a state agency in AR. Whether a policy prohibiting SH existed. Jones v. Framework: a. claiming her rejection of the advances was her boss’ way to retaliate against her for putting off one of his friends.  decided she just needed an apology and went to his hotel room for the second time. Did e/r prove the defense: i. Actionable harassment? (Note if we’re in SJ stage. Under F/E.iii. If so = e/r not liable. =  is an advertising sales rep. Boyd =  worked at Fort Meade at commissary. Did it culminate in AEA? YES. Did the alleged harasser have immediate or successively higher supervisory authority over her? YES c. Clinton = ∆ is President Clinton + bodyguard. or my boss is going to fire me. Did e/r take immediate and corrective action? NO. then ask: did the harassment culminate in tangible AEA? 1. Southwestern Bell Yellow Pages. so s allegations accepted as true. She alleges improper comments and conduct occurred at an out of town seminar which e/ees attended and supervisor had made derogatory comments towards women 1. the e/r is liable. v. Actionable harassment? YES 2. her refusal of boss’ demands culminated in her termination 4.” 1. She interpreted this to mean “I better watch what I do. went back to his room with him 24 . who told her he’d support whatever she wanted to do next. She alleges an incident at a hotel in AR where Pres made advances at her and exposed himself to her. ∆ was the chief of the base exchange from another region who dealt with loss prevention. ii. went to a bar with him. iv. NO opportunity for e/r to present an affirmative defense 2. ∆ engaged in some inappropriate touching of .

She QUIT her job. Culminating in tangible AEA? NO – she quit. ALSO. a. Ruff = SOL for IIED in NC = 3 years from the date the emotional distress manifested. Oncale v. 1. E/r not liable under T7 here…NOTE . a  can reach back for conduct 12-15 years old and claim that has only recently manifested itself. Did e/ee take reasonable care to avoid harm? i. She filed a complaint and did EEOC process. state claims = alternative. If not motivated by sex. Supervisors were dumbfounded. the ∆ e/r may get a verdict on the conduct being NON-SH! viii. Did e/r take reasonable care to prevent and correct behavior? YES i. 4. Hogan = only one  got to jury b/c she had inappropriate touching which helped her establish E & O conduct for IIED b. (No – she put herself in the position to be harassed) 5. Wagoner and Ruff = sexual and/or racial harassment claims often might include elements of state tort law claims which can be brought in the alternative of T7. Practically. may still have a state COA against ∆ vii. Does T7 reach SAME SEX harassment? 2. AFTER he’d promise not to harass her again. By a supervisor? YES 3. Affirmative defense available if can be proven: a. 1.  reported it again. Hogan. supervisor told her she could complain to EEOC) b. He did engage in more inappropriate conduct. Therefore. hard to meet E & O standard c. (Yes – she had a copy of SH policy and knew how it worked. 25 . claiming IIED. if client misses the 180/300 day period necessary for T7. wasn’t terminated b/c of rejection of advances. Wagoner = if conduct doesn’t involve some form of sexually harassing behavior + inappropriate touching (usually). the jury will have to consider whether the harassment was actually motivated by SEX or some other reason. Rule: T7 prohibits discrimination because of SEX period and therefore reaches same sex harassment. Sundowner = crew engaged in sex-related actions against  1. IIED is a state tort law claim = must show inappropriate touching to get past the summary judgment stage! a.ALONE. Actionable harassment? YES (∆s conduct did create a sexually hostile WE) 2.

1. T7 = RACE. § 1981: grants all persons the same right to make and enforce K as is enjoyed by white citizens i. and termination of Ks. 1. It permits someone to state a claim that they’ve been discriminated against based on race. Make and enforce Ks = making. Brought a claim for constructive discharge as a result of racial harassment. Therefore. 26 . ii. performance. §1981 = RACE discrimination! b. T7 i. Parr v. Ct finds this is sufficient to create a K which can provide a remedy for those employed AW ii. MOST courts find that 1981 can reach associational claims 2. 1981 doesn’t require a minimum # of e/ees for the act to apply iv. Found they didn’t have a claim b/c they did NOT have a bona fide intention to take a job if either of them were actually hired by the e/rs they were testing. § 1981 v. He interviewed for a job and was told he’d probably get it. privileges. SOL on 1981 claims: Look at each state to the MOST comparable state tort law. and  didn’t get the job. Diamond Auto Glass = s supervisor at Diamond used racial slurs frequently. color. modification. Spriggs v. if defending you may want to remove to federal court BUT you must do so within 30 days of being served + all ∆s must consent in removal petition f.  was an AW e/ee without a K. At minimum there is a unilateral contract in that when e/ee shows up for work on a particular day. No caps on damages under 1981 iii. any K they would’ve entered would’ve been voidable. and the enjoyment of all benefits. Filing a 1981 claim: Concurrent jd. he will have made out a case under 1981. 2. MOST courts also agree that T7 reaches associational claims iv. Argument: I was forced to quit b/c of my race. Fair Employment Council of WA v. NC = 3 years e. ONLY applies to INTENTIONAL discrimination (use analysis of DT under T7) c. 4C rejected notion that 1981 doesn’t apply to AW e/ees. No charge process under 1981. Does § 1981 reach those employed at will OR only those with empt Ks for a definite term? i.” ∆ defends by claiming 1981 doesn’t apply to AW e/ees. can’t be subject to liability under 1981. rather than solely on the place or nation of his origin. Empt agency told WOW of his interracial marriage. sex. based on his ASSOICATION with his black wife. Mgr told him = we don’t sell insurance to black people or employ them. Claims denied job b/c of Arabian race. he’ll be paid for that day’s work.  sued for race discrimination. 1. iii. Applies to private conduct ii. even if they are white d. Title VII / Civil Rights Act of 1866 a. Al-Khazraji = Iraqui professor became associate professor at SFC. WOW =  was a white man married to a black woman.VI. or his religion. What does RACE encompass? Congress intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely b/c of their ancestry or ethnic considerations. Such discrimination is racial discrimination. BMC Marketing = testers sent out to check on e/rs’ hiring practices. Result: If  could prove on remand that he was subjected to intentional discrimination based on the fact that he was born an Arab. terms and conditions of the Kual relationship iii. BL on § 1981: provides a remedy for ALL citizens if they have been discriminated against based on their race. Though barred as to T7. Applied for tenure and was denied twice. Since they didn’t have a K with e/ee. not barred as to 1981 claim.  told the empt agency who’d sent him there. NO and religion discrimination. WHETHER OR NOT it would be classified as such in terms of modern scientific theory. Saint Francis College v. Important if client has missed the 180/300 day window for filing EEOC charge.

Danco v. ∆s attys failed to object to court’s instruction that  corporation = Guiliani. B/c noone objected. h/e. A new GM comes into play and soon thereafter s contract was terminated. age. the complaint will fail for failure to state a COA for which relief could be granted h. G (Mexican-American) is subjected to racial grafitti. disability i. If ANY of these are pled. 1981 has been interpreted by most states to include a substantive right of freedom from RETALIATORY discharge i. and some physical violence. sex. At charge conference. If attys had been paying attention to the charge. G complains to mgmt but nothing is done. K at issue was with .  sued Wal-Mart under 1981. 1. NOT Guiliani. the jury was allowed to hear and consider G’s emotional distress and harassment as the basis of s 1981 claim. What does § 1981 NOT cover? Discrimination based on religion. and ∆ was getting in trouble for it with EPA. Walmart = Guiliani (sole owner of Danco). T/c gave  a favorable verdict on racial harassment = $650k. racial slurs. 2 years later.g. they could’ve at least argued that an entity can’t FEEL harassed/experience ED. allegedly b/c  wasn’t doing a good enough job keeping the lot clean.  gets a K with Wal-Mart to clean up the parking lot. 1981 does reach independent contractors 27 .

 presented the P/F case ii.VII. MO. Hardison = TWA operated a 24 hour maintenance facility in Kansas City. Framework for accommodation cases 1. He had enough seniority not to work on Saturdays. discharging or otherwise discriminating against a person b/c of his or her religion b. I was fired b/c I’m Jewish. i. Farragher/Ellerth framework used iii. 3 types of religious harassment claims i. TWA said NO! When  didn’t show up for work on a Friday night. Philbrook =  was a member of the worldwide church of God which had 6 holy days during which its members weren’t supposed to work. Religious Discrimination / ADA a. RULE: once e/r demonstrates its provided a reasonable accommodation. you see MD framework used ii. therefore. but was then xferred to another section within the company (where he didn’t have as much seniority).  joined the WWCG which had its Sabbath from sunset on Friday to sunset on Saturday. TWA v.  had worked for TWA for a long time. EEOC v. they required all of their e/ees to attend a devotional service once a 28 . Religious harassment claim 1. His union’s CBA allowed for 18 days of leave/year.  must p/p informed e/r of this belief c. At first he’d lie about what he was doing on his leave days. TWA didn’t have a problem letting him off on Saturdays if he could’ve worked it out with other e/ees. he’d tell the school. its met its burden under the statute e. As such.  must p/p disciplined or otherwise suffered some detriment for failure to comply with the conflicting empt requirement 2. those with seniority () could get better shifts. but they refused to pay him for the extra RELIGIOUS days he was taking. BUT reasonable accommodation by e/r need only by slight. The BOE’s response: you can take 3 days off of UNPAID leave for those holidays. NOR to pay someone overtime to RA s religious beliefs f. E/r has a duty to reasonably accommodate these ABSENT undue hardship i. but he couldn’t. if e/r has to bear MORE than a de minimis cost to reasonably accommodate the e/ee’s religious belief/practice. Usually. Religious beliefs = 1. then eventually. Had made a covenant with God to run it like a Christian operation. he was terminated. you have to let me work 4 days/wk OR pay someone overtime to work for me during that time. E/r NOT required to violate a CBA to reasonably accommodate s religious beliefs. then the cost = undue hardship 2. i. Disparate treatment claim 1. practices and beliefs are covered w/I scope of T7. ROT = beliefs of e/ee may be broad. Religious practices = moral & ethical beliefs as to what is right and wrong which are sincerely held and have the strength of traditional religious views ii. Under the CBA. G/R: all types of religious observances. E/r demonstrates reasonable accommodation and undue hardship of alternatives 1.  approached e/r and said: I can’t work on Saturdays and noone else will work for me.  must plead and prove a bona fide religious belief that conflicts with an empt responsibility b. but only 3 could be used for the observance of religious holidays. Townley = T’s ran a mining operation.  presents p/f case a. E/r has burden of proving offered a RA and alternative accommodations proposed by e/ee would be an undue hardship a. E/rs failure to reasonably accommodate an e/ee’s religious beliefs on the job c. Ansonia v. T7 prohibits e/r from failing or refusing to hire. d.

Ts failed to provide RA to e/ees religious belief AND to show that doing so would be an undue hardship. courts interpret 1A to include a ministerial exemption to T7s application. managed by a particular religion. etc. university. Spiritual costs are NOT sufficient costs to constitute an UH g. trustees of the school are on the Convention board. its not unlawful for it to desire to hire ONLY individuals who believe in the tenets of the Baptist faith ii.week. Court: EEOC presented p/f case. supported. Rule: NOT an unlawful empt practice for a school. 1A exemption applied to protect church against s claim. Roman Catholic Diocese of Raleigh:  sues for sex discrimination in getting fired and not promoted by the Church. or educational institution of learning to hire e/ees of a particular religion if such s/c/u/e/ IS partly/wholly owned. Defenses to Religious Discrimination i. Rule: where e/ee occupies functional status of clergy in a given religious institution. association. association or society 3. educational institution or society with respect to the empt of individuals of a particular religion to perform work. EEOC brought suit to enjoin Ts practice i. Terminated b/c he and the dean didn’t share the same views on TEACHING religion. college. religious corporation. FACT-specific inquiry involved here! 2. Since Samford is SUPPORTED by Baptist Convention. Result: court found s job was the functional equivalent of clergy b/c MUSIC is a VITAL part of the liturgical services! Therefore. Samford University:  hired by divinity school at Samford to teach undergrads. 29 . Religious Educational Institution Exemption = Killinger v. Rule: T7 does NOT apply to a religious corporation. ∆ receives A LOT of funding from the Baptist Convention.Look at TWO potential defenses of Samford and find both apply: 1. claim dismissed.. but then decided not to go b/c he’d become an atheist. Ministerial Exemption = EEOC v. 2. 1. E/ee went to services for a while. Ts refused to let him out of going to devotions.

Disparate Impact iii. Rudenbaum =  worked for Nations Bank as a marketing coordinator. He was terminated by supervisor.) iii. Generally. he applied for some HIV+ drugs through NB medical insurance program. G/R: e/r must make a reasonable accommodation for a person with a disability UNLESS the e/r can demonstrate that accommodation would impose an undue hardship i. gone through treatment. Disparate Treatment ii. ADA = Americans with Disability Act a. recovered. Applies to e/rs with 15 or more e/ees ONLY b.  was xferred to another job within NB. walking. wheelchair. there may be different outcomes for e/rs who are bigger and more financially sound then for those that aren’t g. Failure to accommodate e. He was THEN diagnosed with HIV+. First.VIII. E/ee needs to ASK for a reasonable accommodation 1. or acquiring/modifying equipment ii. Prohibits e/rs from discriminating on basis of a person’s disability. NEEDS 2b a physical or psychological impairment! 1. Is it a disability recognized under ADA? 30 . Major life activities = breathing. His supervisor didn’t know about it when he was initially disciplined for his work performance. ADA requires e/r to look at size and financial resources of business. but still has a record of it) 4. talking. Reasonable accommodations could include = making facilities accessible. E/r makes decision NOT to hire based on that information f. E/r can ask for medical documentation associated w/ impairment that necessitates an accommodation iv. Disability = physical or mental impairment that substantially limits one or more of the individual’s major life activities. HR rep says  shouldn’t be hired b/c he’s heard  has AIDS. modifying work schedules. Substantial limitation = unable to perform or significantly limited in performing 2. She gave him one final chance to improve. He brought an ADA claim. is there a disability covered by ADA i.  = Member of protected class a. e/r isn’t required to provide personal items (glasses.  didn’t make sales calls he was required to make in that job and was rude (racially offensive conduct involved). as long as the accommodation is effective 1. seeing. record of disability OR perceived disability d. Also includes RECORD of impairment ( may have had cancer in past. Perceived disability = a false rumor about a disability. Qualified individual w/ disability? b. NOTE = different from religious accommodation cases. He claims termination b/c of HIV+. Claims under ADA: i. NB had repeated problems with s evaluations. E/r doesn’t have to choose the accommodation requested by e/ee. What does  have to prove in ADA DT claim? (Prove through direct evid or MD anal) 1. supervisor claims it had nothing to do with her decision. Protects any qualified individual with a disability who can perform the essential functions of the job with or without reasonable accommodation c. A month afterwards. Doesn’t have to be in writing 2. etc. caring for one’s self and performing manual tasks 3. When determining the nature of the UH of accommodations. the nature and cost of the accommodation and the essential functions of the job. hearing. i. Disability harassment iv.

e/r testified didn’t perceive him as such iii. If p/f established. iii. j. Perception of Disability claim = No dice. ∆ = termination b/c of absenteeism. Look at it with reference to the mitigating measure ii. E/r has no duty to accommodate e/ee who DOESN’T have disability PREGNANCY is NOT a disability under ADA i. i. NOT JUST at this job or type of work 31 . Williams =  worked for Toyota. 3) associational claim of disability discrimination b/c wife had Crone’s disease. Lower court rejected this defense on remand When determining whether an individual has a disability. Had persistent swelling in his ankle and eventually used up all of his sick days b/c of it. E/r then has BOP to show a legitimate ND reason for its action. Over time. RECALL – still have to prove that  is associated with a disability under the ADA.  claimed violation under ADA. E/r has defense of DIRECT THREAT that can be p/p 1. 2) terminated b/c perceived to have a disability. not disability. k. i.  had carpel tunnel syndrome.  must show that reason advanced by e/r = pretextual Rogers v.h. Initially. At time of AEA. Abbott = Dentist had a patient who has HIV+ that he’d treated for years. patient was told he didn’t fill cavities on people with HIV+ IN HIS OFFICE. l. since she couldn’t they terminated her. Toyota v. T decided  needed to be able to do the lifting to do her job. AEA 3. When patient told dentist about condition and he found a cavity. i. Thus. not a member of protected class deserving of protection 1.  meeting the legitimate expectations of the e/r 4. International Marine Terminals = R worked for ∆ for years. Disability? ADA requires  to show substantially limited in working in a broad sense. Example: if e/ee has 2400 vision without glasses. NOTE = if e/ee has post pardom depression.  sued under ADA claiming 1) DT b/c of his disability. Rule: even when HIV+ person is asymptomatic. presumption arises of discrimination. do they have a disability under ADA? Look at their vision w/r/t to vision w/ glasses to determine whether a disability exists. Took a disability leave under e/r’s policy. no evidence that e/r relied on s spouse’s condition in making decision or even knew about it. E/r not required to provide an accommodation where to do so would pose a direct threat to the health or safety of the e/ee or others iv. he could pursue a claim under ADA 2.  bears BOP on this issue ii. do you examine individual with or without a mitigating measure? i. Company went through RIF and  was laid off b/c of his absenteeism prior to his disability leave. it impacts person’s body on inside and substantially impairs that person’s body functions of reproduction iii. claiming she had a physical impairment which substantially limited her ability to perform certain manual tasks. Discharged under circumstances that raise an inference of discrimination based on disability ii. If  could show he was terminated b/c of association with someone with a disability. DT claim = does R have a disability under ADA? NO b/c a 13% PP disability not good enough. and that e/r knew it! 1. or other issues arising from pregnancy. 2. Associational claim = no dice. but would do it at hospital for a little more expense. e/r might be subjected to ADA liability Bragdon v. T said they’d modify her work responsibilities so she wouldn’t have to do a lot of lifting over her head. Disability? Yes ii.  sued claiming discrimination under ADA i. no evidence shown that e/r perceived  as disabled.

m. n. and personal care. overall financial resources of facility making the accommodation. She was terminated while at rehab. would often pass out for 10-20 minutes at a time. He was mgr of store in the mall. and usually worked by himself in the store. seniority agreement Undue Hardships: nature/cost of accommodation. acquiring/modifying equipment Can an individual OTHER than e/ee ask for a reasonable accommodation for the e/ee? i. Activities essential in daily life = performing household chores. Myers v. w/o regard to rehabilitation.  NOT estopped for failing to ask at the beginning of empt for a RA ii. Concerned about theft. are they judicially estopped from bringing ADA claim? i. p. r. claiming he wasn’t an e/ee with a disability under ADA. just not THIS task at work. Therefore. so use of drugs not current. ii. hose = bus driver with serious health problems requested paid leave to get healthy. q. Result:  could do activities essential to daily life. Claimed disability under ADA b/c she was a recovering drug addict.  claimed in rehab when terminated. E/r denied request. ADA doesn’t require an e/r to make RAs for an otherwise unqualified e/ee ii. Rule: Look at whether individual has an impairment that prevents or severely restricts her from doing activities that are essential in most people’s daily lives. No particular time within which the request must be made iii. s. Cleveland v. but his p/f case failed b/c he couldn’t establish that he could perform the essential functions of his job (or meet the legitimate expectations of his e/r) Shafer v. 1. Individualized inquiry is necessary = not necessarily inconsistent to tell SSDA can’t work and to claim ADA violation (disability but able to work) Reasonable accommodations that must be made UNLESS establish UH if e/ee has disability i. E/r claimed investigated  a couple of days before terminating her and knew about drug addiction. t. ADA didn’t provide a claim for her. Issue = was  CURRENTLY engaged in using drugs when fired? 1. Preston Memorial Hospital =  was a nurse who stole RXs from the hospital pharmacy. but then brings a claim under ADA claiming they can work w/o regard to disability. i. Policy Mgmt = When  has told SS Disability Administration that they are disabled. o. had been diagnosed w/ epilepsy. 2. part-time or modified work schedule. ∆ terminated . E/r may always request documentation of disability What can e/r tell other e/ees about someone who’s requested a RA? ADA prohibits telling other e/ees about individual’s disability and e/r’s RA of that disability.  didn’t ask for unpaid leave to be an accommodation. E/r should say = we treat each e/ee individually Reasonable accommodation analysis: i. What does “reasonable” mean? Usually unreasonable to expect an e/r to make an exception to a CBA. Impairment must also be permanent or long-term iii. overall resources of e/r 32 . Result: court found nurse currently addicted at time of termination. Kinney Shoe = M had worked for ∆ for a long time. Job restructuring. she failed to establish disability under ADA Martinson v.  brought action under ADA i. iv.  was a qualified individual w/ disability under ADA. Potential defense of e/r: termination of e/ee who is currently engaging in use of illegal drugs is NOT protected under ADA ii.

e/r shouldn’t ask anything about medical/disability history 2. Can’t disclose that RA is being made for e/ee to other e/ees in the workplace 33 . then RA issues will come into play. Pre-offer 1. Applies to OBVIOUS and non-obvious disabilities ii. E/r can’t make any disability related or medial inquiries OR require an applicant to take a medical exam (doesn’t include drug tests or physical agility tests) 2. e/r permitted to ask for documentation. If a disability is discovered. Can CONDITION a job offer on e/ee having a medical exam 2. e/r can require e/ee to go to an e/r related physician for testing 3. Once e/ee asks for RA. Before RA requested. Post-employment 1. Can’t ask for medical history of applicant OR for RXs being taken 3. Once RA requested. Job offer may be withdrawn ONLY if decision is consistent with business necessity iii. Post-offer but pre-employment 1. Asking about disability issues during the employment phase? i.u.

AEA arose under circumstances in which age was a determining factor in AEA a. Protected category = individuals 40+ 1. Claim was dismissed at t/c b/c court found replacement person had to be UNDER 40 years for ADEA to apply. Have to be 40+ AT TIME OF discriminatory empt action iii.  is over 40 with 10 years of service. However. Hamilton v. E/ee claims DT or DI b/c of company’s action. Use Farragher/Ellerth framework viii. suffered AEA. but have to demand in complaint vi. Have to go through EEOC charge process BEFORE filing an action 1.  claims he was discriminated against b/c of his age by not being offered early retirement benefits. there was evidence that he wasn’t performing up to his e/rs legitimate empt expectations.  fails to establish AD under ADEA ix. Can have an age harassment claim 1. To show Disparate Treatment 1. Elwood Care =  was a maintenance supervisor in an elderly care home. Discharge c. Hazen Paper =  hired at 53 years of age and fired 9 years later. Unlawful to discrimination against an individual b/c of his/her AGE ii. 2. He claims he got fired b/c of his age. Deferral v. Effect of this is that middle management loses its jobs.IX. = REJECTION of REVERSE age discrimination claim 1. 1. T/c = judgment for . He was required to document all safety and maintenance problems in a weekly report and then ensure they were fixed. At deposition. E/r must have 20 or more e/ees iv.  claims terminated b/c 1) age and 2) ERISA claim (argues ∆ was trying to avoid his pension vesting at the ten year mark). Situation comes up often where e/r decides to reduce costs and eliminates jobs of high-paid e/ees. CT: found  was over 40. O’Connor case:  e/ee was fired at 56 and replaced with a 40 year old. Inc. ADEA/ FMLA / NC Wage and Hour Act / Fair Labor Standards Act / Equal Pay Act a. In an ADEA DISCHARGE case. 1. Most of those people are over 40. He claimed AD b/c the company hired a replacement in his 40s the day before he was terminated AND the company didn’t follow the discipline procedure in its empt handbook. UNLESS  establishes p/f.  went through EEOC process and got a RTS letter. Can get jury trials. US S/C rejected that holding. x. Non-Deferral states processes must be considered v. Coco v. E/ee covered by act 2. he conceded all the problems weren’t getting fixed. ADEA = Age Discrimination in Employment Act i. Rule:  can’t look to some factor (pension vesting) correlated with age to prove DT. and e/r employed over 20 e/ees. Can’t go to the pretext argument. Replaced by someone under circs which permit a reasonable inference of age discrimination e. In a protected age group b. At time of discharge.  was performing at a level that met e/rs legitimate empt expectations d.  must prove the reason for the AEA was in fact age discrimination 34 . Proven by direct evidence or MD framework vii. xi. ∆ offered early retirement to work force if over 50 + had more than 10 years of service with ∆. Ct held = when discharged e/ee is replaced by another close in age in the protected category.  must show a. Catepillar. 1. E/ee suffered adverse empt action by e/r covered by act 3.

RELEASES a. got a RTS letter. Release must specifically refer to individual’s rights under ADEA 4. She opted to sign the release and get the money. Entergy Operations =  worked at a power plant in LA and received several poor performance evaluations. US S/C interpreted the OWPA and set forth very specific requirements which have to be met for a release to be valid in the ADEA arena… i. Use only when there is an express acknowledgment that AGE was a factor in decision of termination b. Requirements 1.  argued that release didn’t comply with the Older Worker’s Protection Act b/c it gave her less than 21 days to consider it. Practically. ∆ e/r claimed she’d signed a release. At trial. claiming termination b/c of age. DI claims: recognized by 3 circuits under ADEA. and filed suit.  giving up his or her rights under ADEA must have at least 21 days to consider the offer a. but argued that  had ratified the release b/c she’d kept the $ ( shouldn’t keep the money AND be able to sue us).3. NOTE = no $ given until revocation pd ended 3. a. ∆ stipulated that release didn’t comply with Act. Supervisor told her they needed to see improvement OR she might be terminated OR that they’d offer her a severance package NOW if she’d sign the release. this won’t come up often 2. E/ee has to get consideration 6. NOTE – e/r can make e/ee sign on any other type of empt claim the same day and release will be valid EXCEPT under ADEA 2. Oubre v. BFOQ = will only come up where there is no dispute that e/ee was fired b/c of age. rest don’t recognize one xii.  must have 7 days after signing release to revoke a. Rule: e/r has burden to prove that age requirement was reasonably necessary to the normal operation of the business c. She filed an EEOC charge. E/r is not hiding the ball. DEFENSES: 1. Release has to be in writing 5. E/ee has to be told in writing to consult an attorney 35 .

parent or child 1. May be that giving more unpaid time off = reasonable accommodation vii. nieces. Doesn’t cover siblings. if you’ve been reared by gparents.  must have worked for e/r for at least 12 months 3. Case to determine whether e/ee received all the benefits he was entitled to receive in connection with his or her FMLA leave 36 . gparents. Analyze under MD framework or direct evidence 2. Whether e/ee has a SERIOUS health condition? SHC requires either in-patient care (or in the hospital) OR continuing treatment by a health care provider involving a period of incapacity of at least 3 days a. To be a covered e/ee = 1. common cold/flu. 2 types of cases under FMLA 1. Disparate Treatment = I was terminated b/c I took FMLA leave or asked to take it a. Issue under FMLA: 1. Requires a covered e/r to permit an e/ee up to 12 weeks per year of UNPAID leave in connection with the birth or arrival of a new child (including adoptions) OR a serious health condition affecting the e/ee OR his or her spouse. nephews OR others you’re close to. in-laws. Same with step-parents…think loco parentis ii. continuing stomach ache and/or headaches vi. During preceding year. f/e.  must have worked 1250 hours iv. Rules w/r/t highly compensated e/ees: 1. An issue may arise as to whether e/ee could qualify as a person with a disability under ADA. Doesn’t cover = cosmetic treatments.b. These e/ees don’t have to be re-instated in contrast to rank and file e/ees who take FMLA leave and are entitled to return to their former positions OR a substantially equivalent position with the same benefits and working conditions viii. E/ee is NOT required to take unpaid medical leave if suggested to e/ee by e/r v. What if e/ee takes the 12 weeks and still would like to take more time? E/r isn’t required to give it. FMLA = Family Medical Leave Act i. you could qualify. if you could prove that rearing. H/e.  has to work for an e/r who employs at least 50 or more e/ees 2. No EEOC charge process involved iii.

Applies to ALL e/rs who act directly or indirectly in the interest as an e/r 1. specifies that an e/r is required to pay the wages he’s agreed to pay the e/ee for the work performed 1. E/ee can hold his e/r. If successful on a NCWHA claim. When drafting them. Doesn’t apply to Independent Contractors 2. NOTE = ∆s may be held PERSONALLY LIABLE for violating NGWHA. he must notify e/ee and change can only be prospective in nature c. Governed by each state statutorily ii. Sets forth minimum wage requirements. he must tell e/ee in advance what policy is and must stick to that policy. Vacation Pay = not required for e/r to provide e/ees with paid vacation a. not just e/r. but otherwise has some discretion as to how often to pay e/ees b. Ambiguous vacation policies will be construed AGAINST e/rs c. f/e) 5. v. liable. Actors and actresses iv.c. Taxi-cab drivers iii. but  doesn’t have to file a complaint. b. State of NC = FLSA applies to these e/ees iii.  can proceed straight to court OR send a demand letter to e/r to get things rolling. make sure to deal with what happens with accrued. but unused vacation time (can it be used next year. E/r must pay e/ees AT LEAST once a month (excludes commissions). If wages are changed by e/r. HR mgr. wages can be 2x. etc. No EEOC charge process. Exceptions (job categories excluded from act): i. NCDOL will conduct an investigation. can e/ee save it all up and ask to be paid for all of it at one time) iv. the Act applies to you a. a. Folks on commissions and bonus plans have to be paid on the first pay date after the amount becomes calculable 4. Domestic e/ees ii. 2. E/r must notify e/ee when hired HOW MUCH and WHEN e/ee will be paid. reasonable attorney’s fees 37 . If  files a complaint. must get paycheck through regular pay channels UNLESS boss requires it to be sent to e/ee 3.  can get = wages for e/ee. If e/ee terminated or quits. NC Wage Hour Act (state minimum wage law) i. If e/r offers it. No minimum e/ee number…if you have AN employee. Withholding of taxes: e/r permitted when required by state law to withhold taxes from paycheck AS WELL AS when authorized to do so by e/ee IN WRITING (dental or health insurance.

Authority to hire/fire OR at least to effectively recommend such changes d. DOL regulates = again don’t have to go through them. accts. Professionals a. Current minimum wage = $5. Exercises discretion in professional judgment 3. FLSA = Fair Labor Standards Act (federal minimum wage law) i. Remedy = wages of e/ee. docs. Applies to e/ees and independent contractors vi. Exempt e/ees 1. Making $250/wk b. Outside Sales a. Typically requires a specialized degree (attys.15/hour v. Engaged in primarily office/non-manual work relating to mgmt policies or the general business operations c. wages can be doubled. nurses. but they’ll investigate if you do iv. Customarily and regularly exercise discretionary independent judgment e. reasonable attorney’s fees x. G/R: e/ee must receive compensation for all hours worked over 40 hours per work-week (unless e/ee is an exempt e/ee) vii. Supervising at least 2 other FT e/ees c.d. can be extended to 3 if there is a willful violation (e/r aware of act and fails to follow its provisions) ix. Professional e/ees who’ve engaged in some specialized study and perform some type of specialized work b. No EEOC charge process before litigation iii. ISSUE: What about a WORKING FOREMAN – does he fit here? 2. Making $250/wk b. Applies to e/rs with $500k of revenue/year ii. Administrators a. Filing = concurrent jd but remember to think about removal from get go if defending 38 . Executives a. SOL= 2 years. Must spend 80% of time making outside sales calls viii. engineers) 4.

2) merit system. Allstate Insurance = new agents at ∆ sued claiming they were getting a lower salary than others similarly situated. So. e/r CANNOT reduce the pay of the higher paid e/ees to REMEDY to unequal pay differential.  showed men working at night were working under similar working conditions as women during the day ii. Prohibits e/r from discriminating based on sex by paying wages in an establishment at a rate less than is paid an e/ee of the opposite sex for = work on jobs the performance of which require equal skill. but other factors. ∆s defense = when setting salary. 4) a differential based on any other factor than sex iii. BUT the decision of how to reward salary is NOT based on the factor of SEX. 1. Equal Pay Act = amendment to FLSA i. Where an EPA violation is found.  must p/p that e/r is paying wages in an establishment at a rate lesser than those paid to opposite sex for equal work on jobs the performance of which requires equal work. Similar working conditions = surroundings of e/ee AND hazards to which the different groups of e/ees are exposed to are considered b. we look at a person’s education. Brennan = CG operated a plant. Look at EACH pay period v. 2. Remember one of the Affirmative Defenses of the E/r = pay differential is based on any other factor than sex = CATCH-ALL provision 39 . 1. SOL = 2 years within the last violation UNLESS violation is willful (3 years) 1. get suit filed pronto. didn’t allow women to do inspection work at night. Corning Glass v.e. NO EEOC process iv. only during the day. effort and responsibility and which are performed under similar working conditions ii. Affirmative Defense where differential in pay based on 1) seniority system. Burdens of proof: a. Kouba v. If there is a violation and e/ee quits. there could be a woman making $60k/year and a man making $40k/year doing the same job. experience and salary history (prior salary). performance or skill in similar working conditions i. 3) system that measures earnings by quality or quantity of production. E/r can assert affirmative defense listed above 2. you can still recover. Men hired to do the inspection work at night were paid MORE money than women who did same job during the daytime. If e/ee has continued to work after pay differential. The REMEDY is to increase the wages of the LOWER paid e/ees to the higher paid e/ees in similar working conditions vi.

ii.  then has 90 days to file suit 3. Opposition and participation claims 2. assisted or participated in some manner in an investigation. Protected Activity i. FLSA 1. NC has set up certain time limits in regard to REDA claims a. What constitutes PA depends on what statute you’re bringing suit under. Most courts have interpreted it to include an anti-retaliation component. 3 components of a retaliation claim: a. T7 = 2 categories 1. If willful retaliation is taken against e/ee. 2 most commonly litigated claims in the workplace a. 1981 1. Most like a participation claim only v. EEPA (Equal Employment Practices Act in NC) 1. e/ee has a remedy under REDA b. F/e. Most like interference and opposition claims vi. but rather for X reason. ADEA 1. reinstatement. lost wages. File a charge within 180 days of alleged retaliatory act w/ Comm of Labor b. if demanded 5. Participation claim = e/r took AEA against e/ee b/c e/ee made a charge. Retaliation claims will be different under each statute we’ve studied = HANDOUT i. c.  must go through EEOC process ii. Jury trials are allowed. Typically. Retaliation from filing a worker’s compensation claim. it can award treble damages + reasonable AFs against e/r. Remedies that can be sought under act: injunctive relief. DOL will ask e/r for a statement on the claim during these 90 days. Retaliation / REDA a. PA under T7 = participation or opposition. Opposition claim = e/r takes AEA against e/ee b/c e/ee has opposed empt practice made unlawful by T7 2. E/r can recover AFs if court determines case is frivolous. If this is true. Interference. Can either give a RTS letter OR bring its own case. PA under the participation clause has been interpreted different than under the opposition clause 40 . ∆ will then explain he didn’t fire for a retaliatory reason.  must go through EEOC process iii. but not just for prevailing 4. proceeding or hearing under T7 3. REDA (Retaliatory Employment Discrimination Act) 1. This statement of NC public policy NOWHERE says anything about a litigant being able to base a WD claim on a retaliation theory viii. DOL then has 90 days to make a decision. Retaliation from asserting rights under NCWHA 2. but NONE is expressly stated in Act vii. ADA 1.  must go through EEOC process iv.X. FMLA 1. coercion or intimidation claim too (b) 3. DOL will issue a RTS letter to  on the 90th day d. testified. Similar language on opposition and participation claims 2.

Adverse Employment Action i.1. Although EEOC proceedings are confidential. not getting promoted. a. PC has been interpreted VERY broadly 2. During her probationary period of empt. suspension c. dishonesty. Suspended AFTER  had filed an EEOC charge (alleging race discrimination). There is obviously a timeliness issue here. and about her successor’s being engaged in gross mismanagement. F/e =  may have filed a charge of race discrimination about an alleged racially discriminatory act 9 years ago. In his letter to EEOC. f/e? 6. not being hired. Lost that job w/ new president elected and became a police captain in SC law enforcement division. Didn’t get along very well with her new boss. She talked about discrimination she perceived when she was a US marshall. protection from being terminated b/c of information given to EEOC doesn’t mean e/ee can’t be sued civilly by e/r (if he’s been defamed) 7. Participation is interpreted very broadly. that retaliatory conduct would give rise to a current claim under the anti-retaliation provision of T7 (partic clause) a.  stated it was clear the no cause finding was issued b/c e/r bribed the EEOC on-site investigator. E/r terminated him for his statement that e/r had engaged in bribery in the reconsideration papers to the EEOC. Was this AEA a violation of the participation provisions of the antiretaliation component of T7? b. e/ee must show then that AEA resulted from retaliation and the reason given pretextual) ii. SC Law Enforcement Division = G had been a US Marshall in SC. Getting demoted. Participation clause = Participation is protected REGARDLESS of whether the allegations in the original charge were valid or reasonable. American Cast Iron Pipe Co:  had an altercation with a co-worker and was suspended. Pay attention to the temporal relation b/t the protected activity and the AEA = did the AEA happen really close to e/ee filing a charge against e/r. GF belief and must engage in reasonable forms of opposition b. Prove it by Direct Evidence or MD indirect evidence method (e/r can articulate a legit ND reason for AEA. EEOC examined charge and found no cause to believe  had been retaliated against. Rule: communications while participating in the EEOC process are ABSOLUTELY privileged and CAN’T be the basis of an AEA c. Pettway v. Causal Connection b/t the protected activity and the AEA i. BUT if an e/r THEN took retaliatory action for that 9 year old baseless claim of discrimination. EEOC said it would reconsider the charge if  would submit more information to it. retaliatory relocation. Must exist to have a valid retaliation claim ii. Opposition clause = those relying on this COA need to have a reasonable. etc…Her NEW boss got a copy of her deposition and told her she used poor judgment in giving gratuitous answers regarding 41 . being discharged.  submitted more information. Glover v.  alleges his suspension is in retaliation for his original EEOC charge. she was asked to give a deposition w/r/t a lawsuit against a former co-worker. Even these untrue statements were protected and thus COULDN’T be the basis of a retaliation claim d.

Opposition claim DOES require an inquiry into the reaosnableness of the manner of opposition b. Laughlin sues for retaliation. The second e/r called Shell for a reference. Anti-retaliation provisions apply to both current and former e/ees. copies them both and mails them to LaSauce. Does  state a retaliation claim under T7? b. LaSauce below R. During litigation. etc). a. Jennings v.  would have an action against BOTH E/rs 42 . BOSS let her go. lawsuit. Result: Taking property and engaging in these illegal acts was NOT reasonable and thus NOT protected opposition 9. US S/C: YES. EXAMINE facts alleged closely. Airport terminated Laughlin for releasing these documents without consent of boss. he filed an EEOC charge against us. Tinley = Laughlin was a confidential secretary for M. M drafts a written warning to R about his conduct (unsigned) and leaves it on his desk. Rule: in participation cases.nothing to do with the lawsuit. CT: termination improper w/r/t the protection afforded under the participation clause of T7 c. If participation + retaliation = generally improper retaliation 8. R filed an EEOC charge against Shell. having no idea which came first. Robinson v. there is no inquiry into the reasonableness of the participation. M realizes what Laughlin had done. While charge pending he applied for a different job with a different company. R reported to M. but if alleged that an e/ee worked for E/r #1 then filed EEOC charge. a. a. Next to the warning is a resignation letter by R = saying resigning and taking a job in El Paso. Shell Oil = Shell fired R in 1991. As a result of her deposition (participation in an EEOC proceeding. Laughlin sees both letters on M’s desk. LaSauce complains to M that R has engaged in SH. Direct Evidence of retaliation b. then applied to E/r #2 and there was a note in e/ee’s file (at E/r #1’s office) that E/r #2 called to ask about e/ee and E/r #1 said DON”T hire him. R alleged Shell gave him a negative reference and that it was given in retaliation for his filing an EEOC charge against it.

Must have reckless indifference to federally protected rights OR malice 3. 101-200 e/ees = $100k 3. Punitive Damages 1. loss of enjoyment of life. Must have INTENTIONAL discrimination (not awarded in DI cases) 2. BP and FP ii. Title 7 i. 501+ e/ees = $300k 5. BP.XI. FP = jury issue ii. 15-100 e/ees = $50k 2. Typically. BP = wages lost from time of discriminatory conduct (date of termination b/c of some protected category) until date of judgment 2. To get these. Compensatory Damages 1. Not entitled to CDs or PDs = according to ALL circuits. CDs and PDs = jury issue h. ADA follows T7 e. court’s award will direct that  be paid properly on an forward-going basis anyway g. BP and FP = issue for the court as to lost wages ii. Liquidated damages are a form of double backpay f. NO Frontpay allowed 1. Can include emotional pain and suffering. Example:  gets his judgment and would really like to have a job w/ e/r. FP = equitable remedy court is PERMITTED to award IN LIEU of reinstatement (form of lost wages recoverable into the future) a. Have to show e/r should be vicariously liable 4. NOTE = jury doesn’t know about caps c. Allowed to have a jury award CDs and PDs iii. S/C hasn’t had a case on it iii. ADEA i. CT won’t direct e/r to give  a job. 201-500 e/ees = $200k 4. § 1981 i. Kolstad = e/r has a defense if it can show GF efforts to comply with empt laws through training programs iv. Backpay and Frontpay relate to lost wages = EQUITABLE remedies 1. NO statutory caps on CDs and PDs d. Remedies a. Depends on what statute/state law theory  sues under WHAT he or she will be able to recover b. Caps on TOTAL CDs and PDs are a function of the SIZE of the e/r 1. State Tort Law (ie – WD claim under NC law) i. FLSA and Equal Pay Act i. Can seek liquidated damages on backpay IF can establish willful violation of statute 1. non-pecuniary losses that  endures as a result of discriminatory conduct 2. case must involve INTENTIONAL discrimination – can’t get them in Disparate Impact cases iii. BP and it can be doubled ii. E/r doesn’t have the job opening any longer. mental anguish. No CDs and PDs iii. but it might award FP as a form of compensation to  ii. Liquidated (2x BP) available 43 . BP and FP = issue for the court as to lost wages ii. FMLA i.

or failed to seek such kind of employment 2. lost bonuses. NOTE = If these issues not pled from the get go. k. no FP will be awarded. n. get stipulations to every damage you can. you may be barred from pleading a defense against PD award. Also = e/r’s atty should ask for any evidence in discovery that  has (document wise) to prove his or her wages before termination. Punitives 1. so the caps can be considered appropriately. Under all statutes. No CDs or PDs j. 3. E/ee has choice of accepting job OR continuing to accrue wage related damages from time of discriminatory action to judgment m. Have evidence to show the court on your e/rs SIZE. If so. and following cases (Gore) to plead a defense to a large PD award. look at the CAPS placed on damages first and make sure  is asking for more than cap a. call s medical care provider as a witness at trial. G/R: e/ee has a duty to exercise reasonable diligence in searching for another job 1. BP and can be 2x ii. it will ask whether reinstatement is an option. Then look at S/C Haslip. If representing e/ee. No FP iii. if  is prevailing party = reasonable attorney’s fees are recoverable l. note WHEN  went to see a medical care provider for the first time! 44 . Practical information on damages: i. lost paid vacation ii. there can be an off-set to damages award for e/r 3. If establishing emotional distress damages. iii. BP and FP can also include lost benefits. If a  voluntarily removes him/herself from job market. Note = if proven. Before court will award FP. Mitigation of Damages i. After-acquired Evidence Doctrine: after acquired evidence of wrongdoing by an e/ee doesn’t foreclose recovery. but helps establish damages suffered (CDs) and to be suffered. E/r is not typically entitled to an off-set where e/ee has received unemployment compensation OR SS benefits iii. Not required.  unjustifiably/unreasonably failed to take a new job of like kind status.i. NCWHA i. You may also want to call the s spouse to testify to the emotional impact that discrimination as had on  OUTSIDE of workplace i. it will foreclose BP for period  was voluntarily removed ii. but does foreclose a FP award or reinstatement iv. It at least gives you a figure to start with and work up from o. If not. so you can at least show court what e/r believes to be his base line liability for damages. When asserted. E/ee’s right to BP is terminated if e/ee is unconditionally offered employment by e/r (if its an applicant situation). Can’t sit around and do nothing without a mitigation off-set 2. E/R bears burden of p/p failure to mitigate damages 1. How far ahead can FP be awarded? No hard and fast rule. If you do this AFTER jury has given a verdict you may be considered to have waived your right to object to PD award! 2. If representing e/r. usually 2-3 years.

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