In General



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1/10/94
In General

Title VII

§1985

Equal Pay Act



ADEA

Americans with Disabilities Act


Older Worker Protection Act - companies decided to save $ by getting rid of older workers who make more $ and can be replaced by younger people for less $.

Company said "release" is not valid - companies say worker can have $x if "release" job or else they're fired.


Equal Pay Act -

Comparative work - ♀ earn ↓ than ♂ counterparts - difference is expanding. ♀ can't prevail under Equal Pay Act unless show job is the same as ♂. So, try to show job is different but value to employer is same, so should get the same pay. --- courts did not buy this theory.


Course Outline
PT. I - Title VII + CRA of 1964 and amendment of 1991

how to proceed in court

nature + burden of proof

burden/oblig. of employer to show conduct not discrimination


PT. II - Sexual harassment; affirmative action programs/goals/ timetables
PT. III -Historical statutes- Civ. Rts. Act 1866 - not orginally aimed at employment discrimination, but were drafted

broadly. So ended up being very threatening to employers.


PT. IV - State and local laws

focus on NY

difference between state and fed. laws → where would you tell your client to go?
PT. V - Equal Pay Act
PT VI - Title VII and CRA 1991 and ADEA and employ. act → Triggered major suits against corps.

1/21/94

Title VII - protect race, nat'l origin, sex, religion
Civil Rights Act of 1991 - Amended Title VII
Exception for sex or religion - bona fide occupational qualification

e.g. female model for women's clothing

Equal Employment Opportunity Commission (EEOC)- 5 members - appointed by the Pres. - no more than 3 from 1 party
Now, if pattern established a DOL lawyer can sue for the individuals
Individual enforcement of Title VII is Most Common

charge must be timely - w/180 days (6 months)

Except: if you reside in a state w/a mini-Title VII (e.g. NY), then 300 days before filing

↑ to encourage handling at the local level (though city/state is underfunded)


Charge: who, where you worked, statement of occurrences about how you were discriminated against
EEOC is supposed to investigate w/in 10 days (though usually w/in 1 month)

EEOC sends a letter to the employer


Intent, Motive, Dissimilar Treatment - hard to get summary judgment
EEOC takes at least 6 months to release its finding

EEOC rarely meets with the parties


Determination - PROBABLE CAUSE?

In any case, a RIGHT TO SUE LETTER

After its issued, the P must file in fed'l ct. in 90 days

- gives the individual a chance to find counsel

- scares employers into settling
Why go to the EEOC at all?

-gets info from employer - free discovery for the individual (helps P to file complaint)

-says to the employer - I'm serious

-EEOC might take up case if a pattern emerges

-must go before going to FED'L ct.
Title VII & EEOC encourages class actions
You can sue under Title VII w/o identifying anybody - prevents retaliation (eventually you have to, of course)

Reasons not to settle:

Woodwork theory

Prospective Applicant Class


Rule 23 - class action: CNOF; Too numerical-(45-50); In interest of justice
Problems with class actions:

must have CNOF

lots of disinterested people - hard to get them to agree to settlement
Class action good for: policies/practices of the employer

NOT GOOD for: reduction in force; issues of termination/promotion/ evaluation/retaliation


You cannot mount a class action under ADEA
GE policy - payment of maternity benefit of female workers not given

class: all women of child-bearing age

Pre-1991 (b/c "no equitable relief"), no entitlemt to jury under Title VII NOW: P is entitled to a jury trial under Title VII (1991 Amendment)
For ADEA, jury trial always - compensatory & punitive damages
Title VII - Before, only equitable relief, like ADEA, but

not > $300,000 compensatory damages

Attorney's fees given to winning P - given to a winning D only on a completely frivolous case (usually pushed for harassment)

Cts are reluctant b/c EEOC is att'y gen'l & individuals are private att'ys gen'l.


Class or individual?

Identified or anonymous?

protects incumbants until group is large enough that employer cannot fire everyone
Did original charge allow employer to know that a class action is possible?

↑ for notice pleading


Subsequent events to the original charge??

Q: "Would the employer have known that this claim would have been connected to this charge?"

2d Cir.: retaliatory act goes back to original charge - no amendment needed

Other Cir.: You must say: employee tends to retaliate against those who protect their civil rights

Burden of Proof in disparate impact cases

disparate treatment intentional discrimination


Disparate impact - a policy that impacts a group disproportionnately
Disparate treatment - a policy or act that intentionally treats a particular individual differently

(smoking gun: only common in ADEA cases)


How to determine intent?

Mixed Motive


Griggs v. Duke Power (1971)

Disparate impact

Company openly discriminated against blacks historically

then: Company tested workers abilities through two tests

lower cts.: tests look OK to us

Sup Ct.: The intent is irrelevant

Tests create a "SIGNIFICANT ADVERSE IMPACT"
So unless an employer can prove that the tests were necessary for business, no good
BUSINESS NECESSITY is the most critical element

How serious a necessity?

Is it job-related? Will success on the test mean success on the job?
No more successful way to determine the best people?? (or as successful w/o the adverse impact?)
Albemarle

Company gave a pre-employment test

All the test adversely affected minorities
Ct.: you cannot merely have a psychologist validate a test - you must test every applicant for statistically significant evidence

Certified Class of present & past employees

Segregated progression lines

Ct.: ordered plant-wide seniority

Company instituted Griggs tests

Then Griggs came down, so Albemarle hired a psychologist to determine the legitimacy of these tests

Ct: Tests, policies, practices - must be not only a business necessity, but job-related. ← BOP on Employer
Watson (1988)
Griggs/Albemarle tests - facially neutral

Here, a black employee of a bank not promoted though acting in that position

Bank had no employee evaluation, so it used subjective criteria
In lower ct., P claimed disparate treatment

On appeal, P claimed disparate impact


Can it be used for subjective criteria?

It is a policy of the compacy which allows supervisors to evaluate employees as they do - employer would be required to show business necessity and job-relatedness.


Sup. Ct.: No problem using disparate impact
1. Identify Specific Employment Practice challenged

2. Must be a statistically significant disparity

3. Causal relationship btwn.
BOP remains w/the employee, but after:

-employer must then show legitimacy, business necessity & job-relatedness

-Emplyee can then show better policy


Wards Cove - 490 U.S. 642

Cannery-unskilled- minority

skilled - white
class action by unskilled workers

english lang. req.

nepotism
9th Cir.: now that P showed disparate impact, BOP shifts to employer

(Presumption of Discrimination)


Sup. Ct.: Prima Facie case - role of statistics

Statistics - give some evidence, but no case can be won on stats alone

9th Cir. WRONG!! Cir. only looked at promotion of entry-level position to skilled - must look at % of workforce qualified compared to % in skilled jobs
P must also show that: 1. specific employment practice

2. each practice created a significant adverse impact (cannot create cumulative effect)


BOP - once prima facie case is established, the employer need only come forward with "a legitimate business justification" (burden of PERSUASION only) - merely articulate a reason
Employee must show that employer could have adopted another policy that would have less of a disp. impact
Civil Rights Amendment of 1991


Directory: sites -> default -> files -> upload documents
upload documents -> Always put things in threes (eskridge has ocd) I. Procedural Due Process and Reading a Case
upload documents -> Federalism – The Structure of Government
upload documents -> General Info About Property law
upload documents -> Con law professor Larry Sager Fall 1995 I. U. S. Term limits V. Thornton
upload documents -> Property with Professor Vicki Been
upload documents -> Property Outline – Professor Upham, Spring 2000
upload documents -> Constitutional law outline part I: structure of government judicial review and constitutional interpretation
upload documents -> Complex federal investigations
upload documents -> Foundations: Agency Law Introduction to law of enterprise organizations
upload documents -> Pricing v. Sanctions

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