Employment Law Final Study Guide Discrimination Law and Disparate Treatment Being overweight is not a protected status o Example Two people come to work one day One man comes in wearing a Jets jersey and one is wearing a Giants jersey He has to fire one person and he hates the giants so he fires the employee wearing the Giants jersey THIS IS OKAY Height is also not a protected status There is no duty to explain to an applicant why they are not being hired Statutory Exceptions to at will Doctrine Federal Title VII 7 there are 6 protected statutes o Gender not sexual orientation discrimination how society thinks a boy or girl should act o Race o Color skin color or perceived race o Sex fired because you are a man or women o Religion o National Origin what country you are perceived to come from Example firing someone That hick is from Texas probably will not hold up in court Receptionists are generally female doctors are generally male Not illegal to hire attractive people Sue someone for discrimination plaintiff files law suit always has a burden of proof Americans Disability Act 1991 Protects individuals with disabilities Age Discrimination Employment Act Protects and covers people from age discrimination over the age of 40 Courts have agreed that if a store is selling women s launderette they are not obligated to hire a man Example a man won a court case against Hooter s because they are selling food not specific things for a specific sex New Jersey Law Against Discrimination NJLAD You cannot discriminate against race color gender age disability also not protected federally sexual orientation military status martial status Example single father Supremacy Clause federal laws set the floor states will then offer more protections can offer more protection but not less Example A man buys a company that has 45 men and 15 women employees o He hates women and lays off all 15 of them along with 1 male to try and hide discrimination o New to show a pattern fired 15 women 1 male o New to show membership in one of the protected statuses o Despite the women s qualifications for the job they were fired o Members of another protected class did not suffer the adverse consequence 15 women 1 male o Show that the reason for firing was because the employee was part of a protected class sex women o Use comparative data and point to someone else and compare treatment to another person s treatment of a different status How do you prove discrimination Individual disparate different unfavorable Individual story someone told you about an individual experience how they were illegally discriminated against Example fact pattern or story where someone is being discriminated against race color gender automatically individual disparate Disparate Treatment McDonnell Douglas Corp vs Green Supreme Court articulated the standard for establishing a prima face case in racial discrimination cases where direct evidence is lacking McDonnell Douglas Test uses federal courts when examining cases arising under Title VII of the Civil Rights Act of 1964 A plaintiff who seeks to establish a case under the NJLAD based up disparate treatment theories MUST set forth a prima facia case of unlawful discrimination showing by preponderance of evidence McDonnell Douglas Corp vs Green o When you want to make a claim McDonnell Douglas Framework o Can use for why someone did not get a job difficult or why they are fired o Modified McDonald Douglas Framework usually used for INDIVIDUAL DISPARATE treatment cases one person being fired because of a protected status o Petitioner McDonnell Douglas Employer o Mr Green employee o McDonnell rejected an employee s reemployment application because of illegal conduct o Mr Green worked for Douglas and was laid off because he worked in the union In the order employees are laid off that is the order that they are hired back Mr Green had a hiring priority Douglas had openings so Mr Green reapplied but did not get his job back because a few months back he decided to take is car with other people onto a highway and shut their cars off around rush hour and got arrested They wanted to make a point about 40 people o Mr Green said that he wasn t being hired back because he was African American o It doesn t state how discrimination took place o Mr Greens feel that he is being discriminated by his employer and is responding to the Supreme Court o When someone claims that they did not get a job because of their protected class they call this protected hired cases 6 of all discrimination loses Wrongful Discharge Cases have something tangible you get it taken away from you When filing a lawsuit again discrimination have a claim to show that you and another person were in the same position and you got treated differently o Example 2 men that work next to each other were hired on the same day They were both late to work twice and a complaint on file If you are late a third time you get fired one is black one is white They commute together both are late a third time African American employee is let go white employee is retained STAGE 1 4 elements to preponderance of evidence PRIMA FACE STAGE on the face of it o Plaintiff is a member of a protected class race discrimination o Plaintiff was qualified for position at issue has been there 4 years warehouse worker o Despite being qualified plaintiff was subjected to an adverse employment decision fired demoted not getting a job suspended lower wage o After the adverse decision the employer sought or hired persons with similar qualifications white person was retained STAGEE 2 EMPLOYER MERE BURDEN OF PROTECTION more likely than not o All the employers need to merely produce a legitimate non discriminatory reason a real reason o Example not following contract or abiding by policy not good at their job not discriminatory because of your race but because you were late 3 times STAGE 3 EMPLOYEES ULTIMATE BURDEN OF PERSUASION o False reason The reason offered by the employer in stage 2 is false wrong or pretext o Plaintiff has to show that the non discriminatory reason in stage 2 is false and or pretext cover up or excuse o Example Hollister has the habit of not hiring people because they don t fit in their size o Something otherwise acceptable but is hiding the real reason o Comparing experiences of both employees burden shifts to employer employer says he terminated African American employee because he was late 3 times and had 5 other notes in his file white employee got a