Employment Law Final Study Guide Class 8 Discrimination Law and Disparate Treatment disparate treatment intention to discriminate height and weight are not protected statuses there is no duty to explain to an applicant why they are not being hired Statuatory Exceptions to the At will doctrine Title VII Federal There are 6 protected statuses o Gender Not Sexual Orientation Discrimination how society thinks a boy or girl should act Firing someone because they ACT too much like the opposite sex Why don t you act like a man discrimination stereotypical discrimination of what the employer thinks a man should act like o Sex fired because you are a man or woman o Race Caucasian Asian o Color of the skin of the person perceived race o National Origin what country you are perceived to come from where your ancestors come from o Religion Firing someone that hick from Texas probably will not hold up in court ADA American Disabilities Act Federal you can t discriminate against someone with a disability o There is no duty for the employer to fundamentally accommodate an applicant because they are disabled ADEA Age Discrimination Employment Act Federal covers people over the age of 40 NJLAD you can t discriminate because of race color sex gender age disability also not protected federally sexual orientation military status marital status ex single father supremacy clause federal law sets the floor states will then offer more protection can t offer less than federal NJ one of the most employee friendly states offers protection against sexual orientation transgendered marital status gender dismorphia EXAMPLE Man buys a company has 45 men and 15 women employees he hates women and lays all the women and one man to try and hide discrimination o Need to show the pattern fired 15 women and only one man o Need to show membership in one of the protected statuses sex o Despite her qualifications she was fired o Members of another protected class did not suffer the adverse consequence 15 women and one man o Show that the reason for the firing was because the employee was part of the protected class sex woman o Use comparative data and point to someone else and compare your treatment to another person s treatment of a different status Individual Disparate different or unfavorable treatment cases individual story individual experience that caused them to believe they were discriminated against McDonnell Douglas Framework When you want to make a claim Can use for why someone didn t get a job this is hard to do or why they are fired Modified McDonnell Douglas Framework is usually used for Individual disparate treatment cases one person being fired because of a protected status Preponderance of evidence there is a more likely than not for each element o The employee is more than likely a woman 3 Stages to this 1 Prima facie on the face of it 4 elements Plaintiff belongs to a protected class Plaintiff is qualified for the position Members not of plaintiff s protected class didn t suffer adverse employment consequence Plaintiff suffered an adverse employment consequence despite their qualifications o Fired demoted not getting a job suspended lower wage 2 Employer s mere burden of production They merely have to produce a legitimate non discriminatory reason o Not good at their job insubordination Example the women were laid off because they were hired last and for economic reasons 3 Employees final burden of persuasion The reason offered by the employer in stage 2 is pretext or wrong The real reason for adverse employment consequence is discrimination o Pretextual cover up or excuse Holllister has a habit of not hiring AA because they don t fit Something otherwise acceptable but is hiding the real reason Class 9 EEOC Garcia v Spun Steak Company EEOC v Premier Operators EEOC Equal Employment Opportunity Commission 3 Major Federal Statutes that violate against discrimination Title VII covers 6 catergories ADEA ADA If you feel your rights have been violated you can t go straight to the federal court you must go to the EEOC You need to file a charge with the EEOC within 180 days from when believed you were discriminated against terminated retaliation Lily Ledbetter equal pay act is an exception to this rule The EEOC does the investigation once the complaint is filed by the employee Steps The employee files the charge with the EEOC They then reach out to the employer and give them a copy of the charge sheet and give the time limit to respond Then both the employee and employer share the information they would like to support their case witnesses documents They then set up a mediation meeting with the employee and an employer and a mediator where both parties explain what they want o These usually work 10 15 of the time o A mediation is legally binding if you sign something o The conclusion does not need to be abided by if each party decided otherwise o There is no duty to barging in good faith If there is no mediation the investigation continues and the EEOC makes the decision they simply decided based on the investigation they say the defendant likely or may have violated Title VII o There is no winner or loser o They then give them the right to sue letter the employee would then sue the employer in court REQUIRED With this letter you have the authority to file your complaint in federal court You have 90 DAYS to file this complaint in court They make this process so complicated because they want the employees to make sure they want to file this complaint and they don t feel like dealing with all these people EEOC state side in NJ The Division on Civil Rights DCR statute side Files the charge for The New Jersey Law Against Discrimination NJLAD o A complaint must be filed within 2 years o If you file this it is binding if they tell you they don t believe you you can t file this claim in state anymore YOU DON T have a case In addition to mediating these discriminations the EEOC will also enforce the laws and has the ability to file suit against individuals or companies who violate laws Disparate Impact concept that even where the employer does not intend to discriminate a facially mutual policy can in fact have the same effect Elements 1 Facially Neutral Policy Factor English only college degree only on the face of it it can t be discriminatory 2 Causes Discriminatory Effect on a Protected Class Defense of Business Necessity by employer can argue Facially Neutral Policy done as narrowly as possible can defend claim of