Employment Discrimination Exam Notes

Exam Details and Instructions

• True/False and Short Answer format.

• Exam content will likely be similar to the practice exam.

• Emphasis on recognizing issues and basic steps to address them.

True/False Questions

• Format: True or False with a brief explanation (usually a sentence).

• Correction: If a statement is false, correct it or explain why it's false.

Example Questions and Answers:

1. Statement: Employees have 90 days to file a discrimination charge with the EEOC.

   • Answer: False. Employees have 180 days (or 300 in a deferral state).

2. Statement: Liquidated damages are automatically awarded in ADEA cases.

   • Answer: False. They are only awarded for willful violations.

3. Statement: A plaintiff must plead each element of a prima facie case.

   • Answer: False. The Sveikervich case established that the McDonnell Douglas framework doesn't alter Rule 8; a short and plain statement is sufficient.

4. Statement: Harassment requires both severe and pervasive conduct.

   • Answer: False. It can be severe or pervasive under Title VII.

5. Statement: An EEOC determination of reasonable cause is binding on the court.

   • Answer: False. The EEOC is not an adjudicative agency; findings are subject to evidence rules.

6. Statement: An employer is not liable if the same person hired and fired the employee.

   • Answer: False. The "same decision-maker" inference is not an absolute rule.

7. Statement: Employers have no duty to accommodate disabilities unless asked.

   • Answer: False. If the employer knows about the disability, they must provide accommodations.

8. Statement: The EEOC charge filing period runs from when the discriminatory action is noticed.

   • Answer: True. But specifically for termination, it's from the date of notification, not necessarily the end of employment.

9. Statement: A selection rate less than 60% is evidence of disparate impact.

   • Answer: False. The EEOC's guidelines establish the 80% rule.

   • Correction: It's 80%, not 60%.

10. Statement: The EEC charging period for a pay discrimination claim begins to run when the last decision affecting the employee's compensation occurs.

    • Answer: False. It starts to run every time a paycheck is issued that reflects a discriminatory pay discrimination.

Short Answer Questions

Example Questions and Expected Responses:

1. Question: James Smith is fired after speaking with an internal investigator, then sues for retaliation and race discrimination. Should the court allow a mixed-motives jury instruction?

   • Response: Yes, for the race discrimination claim (Civil Rights Act of 1991 modified the causation standard). No, for the retaliation claim (subject to "but for" causation under Nassar).

2. Question: A company wants to require all new job applicants to take an aptitude test. What advice should you give regarding disparate impact?

   • Response: Advise the CEO to ensure the test is job-related and a business necessity. Consider alternative practices with less disparate impact.

3. Question: Explain the McDonnell Douglas burden-shifting framework.

   • Response: Plaintiff establishes a prima facie case. The burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason. The burden shifts back to the plaintiff to prove pretext. The Civil Rights Act of 1991 codified the mixed motives framework for claims of race, sex, color, national origin, and religion discrimination. The framework is intended to address circumstantial discrimination cases and help courts determine sufficient evidence to pass summary judgement. The prima facie case is generally used to ween out the most common non discriminatory reasons for an adverse employment action.

4. Question: Explain the difference between an employer's obligation to accommodate an employee's religious beliefs and its obligation to accommodate an employee's disability.

   • Response: Religious accommodation must not cause undue hardship (which, post-Groff, is more than a de minimis burden). Disability accommodation should be provided unless it's an extraordinary financial burden. Religious accommodation burdens and disability accommodation burdens will start to look more the same over time.

5. Question: Explain the after-acquired evidence doctrine.

   • Response: It arises when an employer discovers misconduct after termination that would have resulted in termination had it been known earlier. It's an affirmative defense that cuts off back pay from the date of discovery.

6. Question: Jane Latham was warned about being late, then posted on Facebook about unequal pay. The HR director asks how to handle the situation. What do you tell her?

   • Response: Firing her for lateness is legitimate, but the Facebook post is arguably protected activity. Assess the truth of her claims, and be aware of temporal proximity issues.

Pricewaterhouse and Mixed Motives

• Significance: First acknowledge claims with multiple causes, including unlawful ones.

• Framework: Civil Rights Act of 1991 defines unlawful practice as one "motivated" by an unlawful characteristic.

• Same Decision Test: Employer must prove the same decision would have occurred without unlawful motivation.

• Remedies: Limited to declaratory/injunctive relief and attorney's fees; no compensatory damages.

Jury Instructions:

1. Was race a motivating factor? (Yes/No)

2. Has the defendant proven it would have made the same decision regardless? (Yes/No)

3. What remedies are appropriate?

Fifth Circuit's Hybrid Approach:

• Considers both pretext and motivating factors in the context of the McDonnell Douglas framework.

• Allows evidence to support either cause of action.

Accurate Acquired Evidence

• As per Nashville Banner, cuts off back pay at the time of discovery.

ADA Causation

• Causation for the straight up Title VII discrimination claim falls under motivating factor analysis.

• For ADA, the Supreme Court hasn't provided a solid answer.

• The Fifth Circuit decided a case called Pinkerton that allowed for mixed motives, but that was before Gross and Nassar. The applicability of ADEA claims is based on a case-by-case basis.

Disparate Impact

• Arises via facially neutral policies with a disproportionate impact on a protected group.

ADEA

• The Civil Rights Act of 1991 did not amend ADEA to include disparate impact, the language of the ADVA says, it's not unlawful for an employer to take any action otherwise prohibited under the statute where the differentiation is based on reasonable factors other than age, RFOA

• RFOA factors are in EDOC regs.

• The disparate impact analysis for ADEA claims differs than the disparate impact analysis for Title VII claims

Direct vs. Circumstantial Evidence

• McDonnell Douglas applies to circumstantial cases.

• Direct evidence cases don't require McDonnell Douglas analysis.

• Reed v. Neopost Case elaborates on differentiating direct and circumstantial cases.
  *There's a 4 part test to determine if remarks are sufficient to overcome summary judgement
  1, Are they age related/Are those remarks age related?

1. Are they proximate in time to the adverse employment action

2. are they made by an individual with authority over the action?

3. And are they related to the employment action at issue?

Remarks as circumstantial evidence:

• Requires discriminatory animus by someone primarily responsible or with influence.

The Four-Fifths Rule (80% Rule)

• EEOC guideline for disparate impact claims.

• Not a hard-and-fast rule.

• Focus on statistically significant impact.
  *
  If the selection rate for a particular facial injury policy or test for the projected class that’s alleged that have been accepted in that case, is less than 80% than the selection rate of the majority, then that’s presumed to be a statistically significant impact on that group for purposes of DI claim.
  *

Discriminatory Compensation Decisions

• Ledbetter Act allows for a charging period beginning anew with each discriminatory paycheck.

• Two-year back pay period limitation.

• Equitable defenses like latches may apply.
  *
  Appropriate standard of proof to apply to a religious accommodation case.
  These religion accommodation cases are a little weird.
  The courts want to fit everything into a prima facie case type funnel.
  This formulation is generally what the circuit uses, that was the Davis versus Fort Bend County case that I mentioned when we were talking about that.
  Crown patient case requires a bona fide religious belief. Conflicts with the requirement, the employer is informed about the belief or they know or perceive the belief to exist, and there’s an adverse employment action
  Plaintiffs can prove liability using the mixed motives analysis*

Retaliation and Third-Party Retaliation

• Northern American case: extends protection to those within the "zone of interests".

Considerations from Simmons v UBS Financial Services:

• Employment vs. contractual relationship is key.

Case of Castaneda v Texas

• This is the plaintiff works at the hospital at Texas Tech. And one of her coworkers, who also has the last name Castaneda, is her ex sister-in-law.
  *
  This was the unlawful retaliation against the against me under the Northern American case because I'm within the zone of interests to be protected here.*

So hard to pick a person out with whom you have a sufficient relationship.

Adverse employment action:
This is a case called Newberry NEWBURY versus City of Windcrest. So, what is and is not a materially adverse employment action? The obvious stuff. Termination, devotion, anything that affects your pay, things that affect your work schedule generally can be. If were denied leave in retaliation for engaging in protected activity, that may rise to the level of a materially adverse employment action. But the court says it only happened once
Reassignments that require additional tasks is not materially adverse if it is not accompanied by any other change in the employee's status.
This is the Fifth Circuit citing the Fifth Circuit when it comes up with all these. These cases very well could come out differently in other areas.