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PA Employment Discrimination
PA Employment Discrimination
79
Law
Professional
01/05/2014

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Term
Title VII protected classes.
Definition
Race, color, national origin, sex or religion
Term
How many employees does an employer need to have to be subject to Title VII?
Definition
15 or more.
Term
Factors to determine if person is considered an employee.
Definition

1. Hiring party has right to supervise and assign

2. Hired party does not have discretion over when and how long to work.

3. Hiring party provides and controls instrumentalities and tools of work.

4. Job is not one requiring highly specialized skills.

5. Work is located on-site at hiring party's place of business.

6. Relationship between the parties does not have a set beginning and end.

7. Work at issue is part of hiring party's regular business.

8. Parties classify their relationship as employer/employee.

Term
Can an employer adopt an English-only rule for the workplace?
Definition
Yes, but only if needed to promote the safe or efficient operation of the business, and is not adopted for a discriminatory reason.
Term
Is discrimination based on sexual orientation covered under Title VII?
Definition
No.
Term
To which employers does the ADA apply?
Definition
Employers with 15 or more employees.
Term
Can a state employee sue the state for monetary damages under the ADA?
Definition
No, states are only subject to injunctive relief under the ADA.
Term
Three definitions of disability under the ADA.
Definition
1. Having an actual physical disability.
2. Having a record of disability.
3. Be regarded as having a disability.
4. Having a relationship to a personal with a disability.
Term
Definition of actual disability under ADA.
Definition
A physical or mental impairment that substantially limits one or more of an individual's major life activities.
Term
When does an impairment become a disability under the ADA?
Definition
When it "substantially" limits the ability of an individual to perform a major life activity as compared to most people.
Term
Can mitigating measures be taken into account in determining if someone has a disability?
Definition
No, except for regular eyeglasses or contacts.
Term
Is an employee or applicant currently involved in the illegal use of drugs covered under the ADA when an employer takes action because of the use of drugs?
Definition
No, the ADA does not cover such an employee.
Term
Are episodic impairments or impairments that are in remission covered under the ADA?
Definition
Yes, if it would substantially limit a major life activity when active.
Term
Definition of religion under Title VII.
Definition
Any sincerely held belief, even if the belief is not mainstream.
Term
If an employer takes an employment action based on a believed or perceived impairment, does this violate the ADA?
Definition
Yes, the employer has regarded the person as disabled and this violates the ADA.
Term
What are the elements of a prima facie failure to accommodate case under the ADA?
Definition
1. The employee has a disability within the meaning of the ADA;
2. The employee is qualified to perform, with or without reasonable accommodation, the essential functions of the position he holds or desires;
3. The employee suffered an adverse employment action as a result of discrimination.
Term
Definition of reasonable accommodation under the ADA.
Definition
Any change to procedure, the job or work environment that permits a qualified individual with a disability to perform the essential functions of the position.
Term
In a failure to accommodate claim under the ADA, does the employee have to prove they are qualified for the position in question?
Definition
Yes, the burden is on the employee to show that she possesses the requisite skills and job requirements and that she is able to perform the essential functions of the position with or without reasonable accommodation.
Term
What are some of the reasons why a job function may be considered essential under an ADA failure to accommodate analysis?
Definition
1. The position exists to perform that function;
2. There are a limited number of among whom the job functions can be distributed;
3. The function is highly specialized so that the person hired for the position is hired for his expertise to perform that function.
Term
Is regular attendance at work and reporting for work at a particular time considered essential job functions under the ADA?
Definition
Yes
Term
What must the employee and employer engage in to determine the appropriate accommodations under the ADA?
Definition
Interactive process.
Term
Is reassignment to another position a reasonable accommodation?
Definition
Yes, it can be.
Term
What two elements are required to exist before a reassignment to another position can be considered as a reasonable accommodation?
Definition
1. There be no accommodation that would allow the employee to remain in her current position; and
2. The employee must be qualified to perform the essential functions of the position to which she is to be reassigned.
Term
Is an employer required to bump another person from a position in order to provide an accommodation to a disabled employee under the ADA?
Definition
No, bumping is not required.
Term
Must an employer provide an accommodation to an employee under the ADA even if it will result in undue hardship on the employer?
Definition
No, not if the accommodation would impose an undue hardship on the operation of the business.
Term
Is it permissible for an employer to require medical examinations as a condition of employment?
Definition
Yes, as long as the offer of employment has been made and:
1. If all entering employees in similar jobs are subject to a medical exam requirements; and
2. The results of the exams are kept confidential.
Does not need to be job-related or consistent with business necessity.
Term
Can an employer require current employees to take a medical exam?
Definition
Yes, but only if it is job-related and consistent with business necessity.
Term
How many employees must an employer have to be subject to the Age Discrimination in Employment Act?
Definition
20 or more.
Term
Can an employee sue a state for monetary damages under the ADEA?
Definition
No, only injunctive relief.
Term
How old must a plaintiff be to bring an action under the ADEA?
Definition
At least 40.
Term
Are reverse discrimination claims valid under the ADEA?
Definition
No, these types of claims have been rejected.
Term
What three types of employees are exempt under the ADEA?
Definition
1. Bona fide executives and high policymaking employees. Must give retirement benefits of at least $44,000 per year and employee must have been in position for at least two years.
2. Safety officers (Fire fighters, police, etc.)
3. Elected and appointed officials
Term
What are the three affirmative defenses to claim under ADEA?
Definition
1. Bona fide occupational qualification.
2. Reasonable factor other than age.
3. Good cause.
Term
What must an employer demonstrate to support a defense of BFOQ under the ADEA?
Definition
1. Age restriction is reasonably necessary to its primary mission; or
2. Goal of public safety.
Term
What is the standard for proving a BFOQ under the ADEA?
Definition
Convincing empirical evidence linking age to a decline in job competency.
Term
What are the six things that a waiver under the Older Workers Benefit Protection Act must have to be valid?
Definition
1. Written in an understandable manner.
2. Makes specific reference to ADEA claims.
3. Does not waive rights after its execution.
4. Is supported by consideration.
5. Advises the individual in writing to consult an attorney.
6. Provides a seven day period during which the waiver may be revoked.
Term
What are the primary types of employment discrimination claims?
Definition
1. Individual disparate treatment.
2. Systemic disparate treatment.
3. Disparate impact.
4. Failure to accommodate.
5. Harassment.
6. Retaliation.
Term
Under what discrimination statutes can a plaintiff make an individual disparate treatment claim?
Definition
All
Term
What does an individual disparate treatment claim allege?
Definition
That an employer intentionally discriminated against an individual employee on the basis of a protected characteristic.
Term
When attempting to prove a case of individual disparate treatment using circumstantial evidence, what must a plaintiff prove first?
Definition
Establish a prima facie case of individual disparate treatment.
Term
What are the elements of a prima facie case of individual disparate treatment?
Definition
1. Plaintiff is a member of a protected class.
2. Was qualified for the position and performing satisfactory.
3. Suffered an adverse employment action.
4. Action occurred under circumstances that raise an inference of discriminatory action.
Term
What are the elements of a prima facie case of failure to hire or promote?
Definition
1. Plaintiff is a member of a protected class.
2. Applied for an open position.
3. Was denied hire or promotion.
4. Position remained open and employer continued to seek applicants or it was filled by another person outside of the plaintiff's protected class.
Term
Once a plaintiff establishes a prima facie case of individual disparate treatment, what happens?
Definition
Burden shifts to defendant to articulate a legitimate non-discriminatory reason for the employment action.
Term
Once employer articulates a legitimate non-discriminatory reason, what is the next step in an individual disparate treatment case?
Definition
Burden shift back to the plaintiff (employee) to prove that the employers stated reason is not the true reason and that discrimination was the real reason.
Term
In a mixed-motive employment discrimination case, what is the plaintiff's burden?
Definition
To prove that the discriminatory reason was the motivating factor.
Term
In a mixed motive employment discrimination case, if the plaintiff can only show that his membership in a protected class was a motivating factor, what damages is he entitled to?
Definition
Only entitled to injunctive relief and attorney's fees. Not entitled to monetary damages.
Term
Does after acquired evidence effect the employer's liability in an employment discrimination case?
Definition
No, but can affect the amount of damages to which the employee is entitled.
Term
What are the two types of systemic disparate treatment cases?
Definition
1. Formal discriminatory policies.
2. Pattern and practice of discriminating against a class.
Term
What is the only way that an employer can defend against a formal policy that discriminates?
Definition
By establishing a bona fide occupational qualification (BFOQ)
Term
How does an employer establish a BFOQ?
Definition
Must show that the BFOQ is reasonably necessary to the essence of the employer's business, and that all, or substantially all, individuals in the affected class cannot perform the job safely and efficiently.
Term
What does the plaintiff allege in a practice and procedure systemic disparate treatment case?
Definition
Alleges that discrimination against the plaintiff's protected class is the standard operating procedure of the company.
Term
How does the plaintiff have to prove a pattern and practice systemic disparate treatment case?
Definition
Through the use of statistics and anecdotal evidence.
Term
How can an employer defend against a systemic disparate treatment case?
Definition
By disproving plaintiff's statistics or by offering a non-discriminatory reason to explain the statistics.
Term
What does a disparate impact discrimination claim allege?
Definition
That a facially neutral policy or practice has statistically significant adverse impact on a protected class.
Term
Elements of a prima facie case of disparate impact.
Definition
1. ID a facially neutral policy or practice.
2. Demonstrate that the plaintiff's protected class has been adversely affected by the employer.
3. Demonstrate that there is a causal connection between the policy/practice and the adverse effect.
Term
Is it necessary to prove discriminatory intent in a disparate impact case?
Definition
No, plaintiff does not need to prove discriminatory intent.
Term
What is the rule for triggering liability in a disparate impact case?
Definition
If the selection rate of the protected class is 4/5 or less the selection rate of the group with the highest selection rate, there is a conclusion that there is disparate impact.
Term
How can employer defend against a disparate impact claim?
Definition
Disproving the statistics or proving that the practice is job related and consistent with business necessity.
Term
If an employer rebuts a prima facie case of disparate impact, does the burden shift?
Definition
Yes, the plaintiff then needs to show that there is a less discriminatory alternative to the employer's practice.
Term
Elements of a prima facie case of religious failure to accommodate.
Definition
1. Plaintiff holds a bona fide religious belief.
2. The plaintiff informed the employer of the belief.
3. The belief must cause a conflict with some job requirement.
4. The employer must take adverse action based on the conflict.
Term
If the plaintiff makes out a prima facie case of religious failure to accommodate, what burden does the employer then have?
Definition
Employer has a duty to explore whether a reasonable accommodation exists.
Term
Are religious organizations subject to religious accommodation claims?
Definition
No
Term
What is a plaintiff alleging when she brings a harassment claim?
Definition
That the employer has detrimentally altered the plaintiff's terms and conditions of employment.
Term
Elements of a quid pro quo harassment claim.
Definition
1. A supervisor, manager or other agent of the employer;
2. Made a sexual proposition;
3. Under threat of adverse employment action, which was carried out; and
4. The adverse employment action resulted from refusing the proposition.
Term
Does a hostile environment claim require the presence of a tangible adverse employment action?
Definition
No.
Term
What is required of the offending conduct in a hostile environment claim?
Definition
It must be severe or pervasive such that it alters the plaintiff's terms and conditions of employment.
Term
If a plaintiff alleges a hostile work environment that has not resulted in a tangible adverse employment action, what defense may the employer raise?
Definition
That the employer took reasonable measures to prevent and correct harassing behavior and that the plaintiff unreasonably failed to utilize those measures.
Term
What is considered "protected activity" under Title VII, the ADA and the ADEA?
Definition
1. Opposing disciminatory practices; or
2. Filing a charge or in any other way participating in an investigation or proceeding under one of the statutes.
Term
Elements of a prima facie case for retaliation.
Definition
1. Plaintiff engaged in protected activity.
2. Employer took adverse action against plaintiff.
3. Causal connection between the activity and the adverse action taken.
Term
If an employee establishes a prima facie case of retaliation, what is the next step?
Definition
Burden shifts to the employer to articulate a legitimate non discriminatory reason for the adverse action.
Term
If an employer articulates a legitimate non-discriminatory reason for the adverse action in a retaliation case, what is the next step?
Definition
Burden shifts back to plaintiff to show that the employer's LDNR was not the real reason and that the true reason for the adverse action was retaliation.
Term
Where can employment discrimination complaints be filed?
Definition
EEOC or Pennsylvania Human Relations Commission
Term
How long does a Pennsylvania resident have to file a claim with the EEOC?
Definition
300 days from the date of the adverse action or the date of the last discriminatory act.
Term
How long does an employee in Pennsylvania have to file a claim with the Pennsylvania Human Relations Commission?
Definition
180 days from the date of the adverse action or the date of the last discriminatory act.
Term
Is filing a claim with the EEOC or the PHRC a condition precedent to commencing an employment discrimination lawsuit?
Definition
Yes.
Term
If the EEOC issues a right to sue letter, how long does the plaintiff have to bring suit in federal court?
Definition
90 days
Term
What remedies are available under Title VII and the ADA?
Definition
Compensatory and punitive damages with a statutory cap and attorneys' fees. No liquidated damages.
Term
What remedies are available under the ADEA?
Definition
Liquidated damages in an amount equal to the plaintiff's lost wages. Can also recover attorneys' fees.
Term
What equitable remedies are available in employment discrimination cases?
Definition
1. Instatement
2. Reinstatement
3. Back pay
4. Front pay
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