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.
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)
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?
Griggs v. Duke Power (1971)
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?)
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
Griggs/Albemarle tests - facially neutral
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