Examples & Explanations for Employment Discrimination / Edition 3

by Joel W. Friedman

Overview

Practical Preparation for Successful Students Widely recognized by law students everywhere as the go-to prep tool for class, the best-selling Examples & Explanations series offers clearly written text, along with probing examples and detailed explanations, that will help you understand and test your knowledge of what you are learning in the classroom. Often recommended by professors, each Examples & Explanations text is an indispensable resource-offering a great way to prepare for class or review for exams. Wolters Kluwer offers an Examples & Explanations for over 35 law school courses, including: Administrative Law, Agency, Partnerships, and LLCs, Antitrust, Bankruptcy and Debtor/Creditor, California Community Property, California Evidence, Civil Procedure, Conflict of Laws, Constitutional Law Individual Rights, National Power and Federalism, Contracts, Copyright, Corporate Taxation, Corporations, Criminal Law, Criminal Procedure, Dispute Resolution, Employment Discrimination, Environmental Law, Evidence, Family Law, Federal Courts, Federal Income Taxation, Intellectual Property, International Law, Legal Research, Legal Writing, Legislation, Statutory Interpretation, and Election Law, Payment Systems, Professional Responsibility, Property, Real Estate Transactions, Remedies, Sales and Leases, Secured Transactions, Securities Regulation, The Law of Torts, Wills, Trusts, and Estates For more information about the Examples & Explanations series, including new and forthcoming titles, please visit WKLegafedu.com/series/examples-explanations.

Product Details

ISBN-13:	9781454868484
Publisher:	Wolters Kluwer
Publication date:	04/10/2017
Series:	Examples & Explanations Series
Edition description:	New
Pages:	364
Product dimensions:	6.90(w) x 9.90(h) x 0.90(d)

Table of Contents

Preface xvii

Part I Proving Discrimination

Chapter 1 Individual Claims of Intentional Discrimination 3

A Introduction 3

B The Basic Analytical Framework: A Tripartite Formula 4

C The Formula in Operation: Proving Pretext 6

D An Alternative Evidentiary Approach for Mixed Motive Cases 15

E After-Acquired Evidence 22

F A Quick Word on Affirmative Defenses 25

Chapter 2 Systemic Claims of Intentional Discrimination 27

A Introduction 27

B Using Statistics to Establish a Prima Facie Claim of Systemic Disparate Treatment: Teamsters and "The Inexorable Zero" 28

C Another Statistical Model for Closer Cases of Systemic Disparate Treatment: Hazelwood 30

D Yet a Third Model of Statistical Analysis for Multi-Factored Decisions: Bazemore 32

E Another Brief Word on Affirmative Defenses 39

F And, Finally, This … 40

Chapter 3 Non-Intentional Discrimination: Disparate Impact 41

A Introduction 41

B Establishing a Prima Facie Case of Impact Discrimination 42

C Applying Impact Analysis to Multi-factored Decisions and Subjective Criteria 45

D Defending Impact Claims: An Introduction 54

1 An Affirmative Defense to Title VII Impact Claims: Job-Relatedness and Business Necessity 54

2 An Employer's Alternative to Validation: "Norming" or Other Attempts to Avoid the Existence of Disparate Impact 57

E That's Not All, Folks 62

Part II Title VII of the 1964 Civil Rights Act

Chapter 4 A General Overview: Proper Plaintiffs, Suable Defendants, Covered Practices, Exceptions, and Exemptions 67

A Introduction 67

B Suable Defendants: Employers 68

C Suable Defendants: Employment Agencies 72

D Suable Defendants: Labor Organizations 74

E Proper Plaintiffs: "Employees" and "Individuals" 76

F Covered Practices 78

G Exceptions and Exemptions: Overview 80

H The Religious Discrimination Exemption for Religious Institutions 81

Chapter 5 Special Proof Issues Under Title VII: Defenses, Sexual Harassment, and Retaliation 93

A Introduction: The Basic Proof Formulations Redux 93

B Affirmative Defense to Intentional Discrimination: §703 (e)(1) - The BFOQ Defense 94

C Affirmative Defenses to Impact-Based Discrimination: §703 (h) - Bona Fide Seniority or Merit Systems and Professionally Developed Ability Tests 102

D Sexual Harassment: Is It Actionable Discrimination? 106

E Sexual Harassment: Is the Defendant Employer Liable? 114

F Retaliation 121

Chapter 6 Specific issues Involving the Five Protected Classifications: Race, Color, Religion, Sex, and National Origin 133

A Religion-Based Discrimination and the Duty to Accommodate 133

B National Origin-Based Discrimination 138

C Discrimination on the Basis of Race and Color 141

D Discrimination on the Basis of Sex 142

1 Introduction 142

2 The "Sex-Plus" Doctrine 142

3 Discrimination on the Basis of Pregnancy 144

4 An Aside: The Family and Medical Leave Act of 1993 148

5 Discrimination on the Basis of Sexual Orientation 149

6 Reliance on Sex-Based Actuarial Tables 151

Chapter 7 Enforcement: Procedures 157

A Title VII Procedural Requirements for Nonfederal Employees: Overview 157

B The First Step: Federal and State Administrative Charges 158

C Determining the Date of Discrimination 169

D Individual Suits: Permissible Scope 178

E Individual Suits: Preclusive Effect of Administrative and State Court Rulings 179

F The Impact of Arbitration Agreements on Litigating Title VII Claims 180

G Suits by the EEOC 187

H Procedural Requirements for Federal Employees 188

I Class Actions: Overview 191

J Class Actions: Rule 23 Analysis 192

Chapter 8 Enforcement: Remedies 199

A Overview 199

B Equitable Relief 200

1 Injunctive Relief 200

2 Back Pay 202

3 Attorney's Fees 203

C Legal Relief 213

1 Compensatory Relief 213

2 Punitive Damages 216

3 Cap on Damages 218

4 Taxation of Monetary Damage Awards 219

D Equitable and Legal Remedies in Cases Involving Systemic Discrimination 219

E Affirmative Action 220

1 Overview 220

2 The Constitutional Limits 221

3 Statutory Limits-Title VII Scrutiny of Affirmative Action 224

Part III Other Federal Antidiscrimination Statutes

Chapter 9 The Reconstruction Civil Rights Acts - 42 U.S.C. §§1981, 1983, and 1985 - and the Equal Pay Act 235

A The Civil Rights Act of 1866-42 U.S.C. §1981 235

1 Overview 235

2 Coverage and Substantive Provisions 236

3 Procedures and Remedies 238

B The Civil Rights Act of 1871, Section One - 42 U.S.C, §1983 244

C The Civil Rights Act of 1871, Section Two - 42 U.S.C. §1985(3) 250

D The Equal Pay Act 252

1 Overview 252

2 Coverage and Substantive Provisions 252

3 Relationship to Title VII 255

4 Procedure and Remedies 256

Chapter 10 The Age Discrimination in Employment Act 261

A Overview 261

B Coverage 261

C The Meaning of Age Discrimination 263

D Proving and Defending Intentional Age-Based Discrimination Claims 263

E Proving and Defending Disparate Impact Claims 273

F Voluntary and Involuntary Retirement 274

G Public Employees and Constitutional Challenges to Age Discrimination 276

H Procedure and Remedies for Nonfederal Employees 280

I Federal Employees 283

Chapter 11 Discrimination on the Basis of Disability 289

A The Americans with Disabilities Act (ADA) 289

1 Overview 289

2 The Meaning of "Disability" 291

a "Regarded As" 291

b Physical or Mental Impairment 292

c Substantially Limiting 293

d Major Life Activities 296

3 The Meaning of "Otherwise Qualified" 302

4 The Dual Meaning of Discrimination 306

a Proving Adverse Action-Based Discrimination: Intentional and Disparate Impact Claims and Retaliation 306

b Causation 308

c Associational Discrimination 308

d Defending Adverse Action-Based Discrimination Claims 309

i Direct Threat 309

ii Bona Fide Insurance Plans 310

iii Job-Relatedness and Business Necessity 311

iv Religious Entities 311

e The Duty to Accommodate 314

i A Few Words About Genetic Testing 319

ii Drug Testing and Other Medical Examinations 320

5 Procedures and Remedies 324

B The Federal Rehabilitation Act of 1973 325

C Constitutional Claims 326

Index 329