Employment Law Outline

Fall 2003 Dever I. Employment at Will and Wrongful Discharge a. CL default rule: employment at will i. E/ee can quit for any reason at any time without penalty; e/r can terminate for any reason or no reason without penalty ii. Exception: wrongful discharge in violation of public policy iii. Other exceptions = written empt. Ks; oral Ks sometimes b. Howard v. Wolff Broadcasting = had a job as a DJ at a radio station. She was fired b/c the e/r didnt want women on the air. E/r only had 7 e/ees, so T7 didnt apply. claimed she was not an AW e/ee b/c she had a lifetime K with the station. She didnt have a K to back her up though. She tried to establish a unilateral K through the issuance of an e/ee manual from her e/r. Didnt work. Argued that sexual discrimination in the work place = against PP and she should be able to sue for wrongful discharge in violation of PP. CT = passed the buck to the legislature; cited several times where CT specifically refused to adopt a PP exception to AW empt doctrine. If there is going to be an exception, the LEGISLATURE should implement it through statute. i. MINORITY stance c. Martin Marietta v. Lorenz = claimed that he was wrongfully discharged in violation of PP b/c he refused to misrepresent the quality of MMs products to NASA, which e/r had encouraged him to do. had told e/r he wouldnt sign off on any paperwork representing to the government that the materials were worthy, knowing they werent. He argues that its against PP to misrepresent information to the government that will affect other peoples safety, AND subject him to criminal liability. alleged he was then fired for NOT signing the paperwork. T/C found for MM; but on appeal, the court recognized the PP exception to the AW empt doctrine. i. Rule: if you plead and present evidence that you have been asked to violate the criminal law, that you refused to violate the law, and then lost your job, you can bring a COA under a judicially created exception to the AW empt doctrine = wrongful discharge in violation of PP. d. Wrongful Discharge in NC i. WD in violation of PP = TORT action = PDs can be obtained ii. Sides v. Duke University = Nurse at Duke taking care of patient in recovery after surgery. Doctor wanted her to give patient some medicine, but nurse refused claiming it would put the patients health in danger. Doctor gave patient medicine anyway and he died. Patients estate sent nurse a notice of deposition. Doctors encouraged her to testify untruthfully. She told them she would testify truthfully and subsequently was treated hostilely at work and then fired from Duke. She sued on several claims: 1) not subject to AW empt doctrine b/c I have a K that I can only be fired for incompetence; 2) WD in violation of PP. T/C = judgment to Duke. On appeal, reversed for . FIRST TIME WD in violation of PP recognized in NC (Ct of Appeals). 1. Rule: an e/ee cant be fired for refusing to testify untruthfully in a judicial proceeding 2. Ct on remedy: if pleads and can prove WD, can recover PDs iii. Coman v. Thomas Manufacturing Company = State and federal law require truck drivers to keep a log of how far theyve driven, how long theyve been driving, and when theyve taken breaks. s boss didnt want him taking breaks, so he told to falsify the driving records to show that the company was complying with the law. NC S/C gets this case. They dont look to federal law, but say that the PP violated here are NC regulations and state law governing safety for truck drivers travel. If can prove violation of these regulations, he can recover in tort and take himself out of the g/r of employment at will. 1

iv. Harrison v. Edison Brothers = H complained of sexual harassment at work. When she didnt cede to her e/rs demands, she was fired. Ct only had Hogan case to look to for an answer on this one and it involved SH b/t 2 employees. Decided that case wasnt applicable here b/c SH of e/ee by e/r. was being asked to violate a statute in NC that prohibits prostitution. Have sex with this manager, OR lose your job. She had to prostitute herself to keep job; which would be a violation of the law of NC. 1. PP = statute prohibiting prostitution = LOOK for violation of STATE public policy. shouldnt have to violate the law to keep her employment = consistent with Sides and Coman. If can plead and prove case, can recover for WD in tort, and maybe get PDs v. Amos v. Oakdale Knitting = A alleged he was required to work for a wage BELOW minimum wage OR hed be terminated from empt. He brought claims under NCWHA and for WD in violation of PP. 1. PP = minimum wage levels codified in NC statutes (under NCWHA). If e/r doesnt pay what he is required to pay, his actions MAY be violative of PP. NCWHA does provide a statutory remedy for this problem, BUT NCGA hasnt said that remedy is the EXCLUSIVE remedy available to s. Therefore, if A can plead and prove WD in violation of NCWHA, he can recover in tort and get PDs. vi. Phillips v. Stevens = was harassed at work and told not to tell anyone about it. She was then terminated. The PP she relied on was the Equal Employment Practices Act. This is simply a STATEMENT of public policy; not a separate statutory scheme. It is the PP of NC to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold empt without discrimination and abridgment on account of race, religion, color, national origin, age, sex or handicap by e/rs which regularly employ 15 or more e/ees. claims WD in violation of EEPA (which includes sex discrimination). 1. EEPA is MOST typically relied upon statute for a state law WD claim in NC. For sex discrimination, rely on EEPA as a statement of PP to get claim heard. vii. Daniel v. Carolina Sunrock Corporation = claims she was terminated after she told her boss shed testify truthfully w/r/t a former plant superintendent. He said: Do whatever you have to do, but remember who you work for. She never had to testify, but was terminated about 1.5 years later. NC S/C: granted SJ to . 1. failed to prove causation here18 months elapsed b/t the time she was subpoenaed and the time she was terminated by e/r. failed to show that her telling her boss she would testify truthfully LED to her being terminated. viii. Hughes v. Bedsole = was a jail matron. She failed to lock cell block doors on multiple occasions. She was disciplined several times for her negligence. She was given one last chance by the sheriff, but left the damn doors open again. After that, she was fired. claims fired b/c a woman (violation of PP under EEPA), not b/c of her negligence on job. T/C = termination b/c of negligence on job, not her sex. Granted SJ to . 1. NOTE = if there had been ANY evidence of discriminatory animus towards , court probably wouldve allowed this to pass SJ stage. 2. POINT = EEPA can be a PP ground for WD claim. BUT even though can plead a COA using it, STILL must PROVE the case. Here, court tells her proof of sexual discrimination fails. NO recovery for WDPP. ix. Roberts v. First Citizens Bank = was a loan officer at FCB. She alleged she was fired b/c she failed to cash out a CD without giving notice to the debtor (whose loan was secured by his mother.) felt mother should be given notice that they were about to foreclose on CD before foreclosing, so mother would have a chance to pay off the debt. Practically, UCC does require creditor to give this notice. Bank fired , allegedly b/c of 2

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her performance. alleges terminated b/c didnt do what boss told her to do in regard to CD. 1. PP here = NCUCC. UCC establishes PP of NC on debtor-creditor relations. shouldnt be fired for refusing to violate the law of NC. CT awarded PDs. Bass v. City of Wilson = B was APPLICANT not an e/ee. 1. Federal court interpreting STATE law decided to extend the concept of WDPP to an applicant (IF applicant wouldve gotten the job). NO state court has extended WD to an applicant; so exception to AW empt doctrine doesnt apply to applicants in NC! Johnson v. Mayo Yarns = J displayed a confederate flag on his lunchbox at work. He was asked to remove it but didnt. He was then terminated. He claims termination was against PP b/c it abriged his free speech rights under 1A. 1. 1A could be a PP to rely on, BUT there has to be a state actor involved; 1A doesnt limit the actions of private e/rs. Dismissed for failure to state a claim Mullis c. Mechanics & Farmers Bank = claimed she was sexually harassed at a temp job; told her supervisor at the temp agency and at the bank, but nothing happened. After reporting the behavior, she was reassigned. She alleges she didnt get any relief and that she has a COA for WDPP under EEPA. NOT enough = must plead and PROVE her claim + show a PP that is violated. All she did here was cite the EEPA, and say it gave her a cause of action. EEPA doesnt just give e/ees a COA for WDPP; you must still plead a CLAIM and prove it, CITING EEPA as your basis of PP that was violated! Garner v. Rentenbach Constructors Inc. = G was hired by and required to go through drug testing. sends his sample off to a lab which has represented that it is CERTIFIED for testing. s sample tested positive for MJ. was terminated. He argues WDPP b/c the lab was NOT certified and e/r relied on that lab in its decision to terminate him. 1. NC S/C dealing with issue AGAIN of whether just citing ANY statute is enough? 2. RULE: there has to be SOME degree of an INTENT TO HARM PP (by the e/r). Here, e/r had inquired into the certification of the lab and was told it was certified. E/r simply relied on that representation. Therefore, e/ee didnt state a claim Additional Consideration = moving from one place to another TO take a job. Does moving like this take an e/ee out of the general rule of AW empt doctrine, so that e/ee can recover in K? NC C/A seemed to accept that there is an additional consideration exception to AW empt. 1. Kurtzman v. Applied Analytical Industries, Inc. = was a sales manager in Mass and was induced to come to NC to take another job. The prospective e/r promised him there would be long term growth opportunity. did NOT get a written K. worked in NC for a little while and then was fired for incompetence. He filed suit for breach of K (not under a WD theory). argued that he had a K for a reasonable period of time, under the additional consideration exception to the AW empt doctrine AND that the K had been violated by his termination. a. NC S/C reversed C/A b. G/R: AW empt w/o a K for employment c. Exceptions: i. Wrongful Discharge in violation of PP ii. Express Statutory provisions (T7, etc.) under which can bring suit iii. Contract for a specified term (oral or written) d. NO 4th Exception to AW empt doctrine exists for additional consideration 3

e. Employment Manuals: states deal w/ these & rights guaranteed to e/ees by them differently i. Roberts v. Wake Forest University = negotiates with Athletic Director at WFU and then accepts job. No written K is obtained by . Terminated 16 months later. Was asked to take another position at WFU, but refused. He sues claiming breach of K, alleging that traditionally golf coaches are hired for long tenure & that parties INTENDED he would only be fired for good cause. He argued the EM referred to him as a permanent e/ee who was entitled to certain benefits. Argued the EM created K rights he could sue under to have enforced. 1. CT = EM does NOT create a K that takes this case out of the AW empt scenario. Therefore, he is an at will e/ee and e/r can fire him at any time and for any or no reason at all. Rationale behind this result: though harsh, e/ee COULD HAVE demanded a written K up front before accepting a position with WFU 2. EM does NOT create any CONRACT rights which = exception to AW empt ii. Harris v. Duke Power = was a welder at Duke Power, who was terminated for incompetence on certain weld quality. attached to his complaint the DP rules of conduct used for managers at DP to discipline their e/ees. argued he was discharged without cause, in violation of the EM. 1. CT = EM doesnt take you outside of AW empt doctrine in NC. Some other state courts have said EMs could be incorporated into a K and create rights for an e/ee. BUT NOT here in NC. Result = AW e/ee and can be terminated for no reason. iii. Salt v. Applied Analyticals, Inc. = takes a new job in NC at a pharmaceutical company. Shed been at Burroughs Wellcome for 10 years, without a chemistry degree. She was concerned that if she were terminated, she wouldnt be able to find a job without that degree, but was lured into the position on a representation of job security. She moved to Wilmington, started new job and about a year later was terminated for incompetence and for bothering other e/ees. She didnt have a written K, but sued for breach of K and breach of implied covenant of fair dealing and WDPP. Argues she had a K based on EM. 1. CT: a unilaterally promulgated EM (by the e/r) does NOT become part of an employment K, UNLESS expressly included in the K. Ct determines that if an e/ee wants EM to set up rights for e/ee, it better say in the manual that it is incorporated INTO an EMPT K e/ee has w/ e/r AND that EM creates rights 4 e/ee 2. When drafting empt Ks for e/rs, ADD this doesnt create any K rights for e/ees. 3. Court ALSO rejected a separate claim for bad faith discharge iv. Bottomline = EMs dont create K rights for e/ees, WITHOUT an actual K of employment b/t e/ee and e/r that incorporates the manual AND says the manual gives rights to the e/ee f. BOTTOMLINE on AW empt doctrine and exceptions i. Ask first if client has a K If so, dont need an exception to AW empt doctrine. All you have to show is that e/ee was terminated in violation of empt. K. If no K, was e/ee wrongfully discharged in violation of PP? 1. Find the PP first = statute or administrative law; UCC; EEPA; NCWHA 2. Show was required to violate law to keep job. 3. didnt violate law and lost job. 4. If can plead and prove, can establish a COA for WDPP and recover PDs ii. No exception for additional consideration iii. NO exception for EMs creating K rights UNLESS its incorporated into K that says so

g. Covenants Not to Compete i. Still governed by the CL in NC; in many states, there are statutes that deal with covenant issues. Some states limit their enforceability and some absolutely prohibit their use! ii. To be enforceable in NC, a CNC must: 1. Be in writing 2. Be reasonable as to time and territory a. Analyze together = more narrow the territory, the longer it can be in time. But the broader, the shorter the time period should be 2b enforceable by ct 3. Be part of an enforceable employment K = doesnt have to be for a definite term 4. Be supported by consideration a. Mere continued empt is NOT sufficient to support a CNC b. Always look for what e/ee is getting when he signs the CNC i. Raise, promotion, new benefit plan, $100 c. Courts will enforce CNCs signed 2 or 3 days after beginning work 5. Be designed to protect a legitimate business interest of the e/r a. Customer lists, proprietary information of company, trade secrets b. Look at what the interest being protected is and WHO has the information 6. NOT violate Public Policy iii. CNC problems arise when 1) e/ee leaves work and goes to work for a competitor AND 2) e/r wants to sue e/ee who goes to work for competitor. CLIENT will want injunction, a TRO, prohibiting e/ee from violating the CNC. TROs only last for 10 days and are ex parte proceedings. After those 10 days, youll have to file for a preliminary injunction. The PI hearing can go anywhere b/t 10 and 60 days, so usually CNCs will expire by their own terms before e/r gets a decision from the court (b/c typically limited to 16-18 months). Hearing on the PI is just like a trial. Evidence is presented on the validity of the CNC w/r/t the elements. Judge then determines whether the CNC is valid and whether to grant the PI. iv. Forrest Paschal Machinery Co. v. Milholen = is a brick company. M brothers worked there forever, and then left to open their own company competing with . just wants s to honor their CNCs. 1. 1: argues no additional consideration given for his signing CNC. He did get promotions, etc. AFTER signing the CNC, but was never told he would get them FOR signing it. Not enforceable as to him. 2. 2: he signed CNC as part of getting a promotion to become the general manager. Enforceable. Ct allows PI sought by which prohibited for 2 years from competing with within a 350 mile radius of the s company. v. Clyde Rudd Associates v. Taylor = was a salesman. He signed a CNC, in consideration for a more lucrative commission structure. Ct found the CNC to be enforceable. 1. Court lists factors for determining time/territory reasonableness: a. The area, or scope of the restriction b. The area assigned to the e/ee c. The area in which the e/ee actually worked or was subject to work d. The area in which the e/r operated e. The nature of the business involved f. That nature of the e/ees duty and his knowledge of the e/rs business operation

vi. W/R/T CNCs, does it affect their enforceability if the e/ee is FIRED, instead of quits? 1. In NC, you MUST look at the K itself. Does it make a distinction on whether you have been terminated or whether youve quit? If advising e/ee, make sure to tell him to negotiate that with e/r on the front end of the deal. vii. AEP Industries v. McClure = is a manufacturer; is a salesman of s, who signed a CNC. left and went to work for a competitor. wants to enforce the CNC. 1. How to advise e/r: a. Rule 65 = get a TRO; then if things go well, get a preliminary injunction b. TRO not hard to get for 10 days. c. On the preliminary injunction front, NC courts will look at two issues at the hearing: i. 1) what is the likelihood of success on the merits (are the elements of CNC satisfied) ii. 2) whether the entity is going to suffer irreparable loss if the injunction is not issued OR whether issuance is necessary to protect the s rights during the course of the litigation 1. s rights = e/rs right to make the former e/ee follow his word (CNC) during the litigation if nothing more. If this right isnt protected, the will lose out big time b/c it will take forever to get the case heard on appeal, and in the meantime, the former e/ee will be out there using our trade secrets, our contact lists, etc in violation of CNC. This could destroy s business BEFORE the appellate court ever gets to review the trial court decision viii. United Labs v. Kuykendall = K was a salesman who went to work for a competitor in violation of a CNC. He then went back to and signed another CNC. He was lured away from that job by a competitor again, WHO KNEW about the CNC. However, the new e/r offered to pay e/ees defense costs if former e/r litigated the CNC issue w/ e/ee. 1. Legitimate business interests include: customer contacts of e/r, customer sales lists, customer sales information. ALL of this information can be protected through CNCs. Ct doesnt buy Ks argument that the customers are HIS contacts b/c he deals with them. Instead, sees K as an agent for UL. ix. Nalle Clinic v. Parker = pediatrician with specialty in endocrinology agreed to a 2 year CNC in connection with practicing in Mecklenburg County. He worked for 2 years and then decided to go into private practice there. His former practice group sued him. A PI was issued. 1. Demonstrates PP element 2. C/A decided NOT to enforce CNC b/c against PP (w/r/t specific nature of docs practice). Rationale: if doctor was precluded from practicing in MC, there would only be ONE other doctor who could perform the same services there. Enforcing CNC would create a threat to public health 3. NOTE = a lot of times the degree of the specialty plays a big part in this area 4. CNCs are unenforceable in empt Ks for attys: b/c of the code of ethics x. Professional Liability Consultants, Inc. v. Todd = CNC in this case was tied to specific clients of e/rs (wherever they might be found), INSTEAD of geographical boundary. 1. Rule: You have to have a geographical reference in CNC for it to be enforceable 2. Blue-Penciling CNCs: a NC will not re-write a CNC if it is too broad or too long in time, HOWEVER, a court will enforce alternatives in a K that are already there, if they are agreeable to court. Practically = interference w/ freedom to K! 6

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Core Employment Discrimination Statutes MAJOR EXCEPTIONS to AW empt doctrine = ALL STATUTES prohibit various forms of discrimination in the workplace a. b. c. d. e. Title 7 = prohibits discrimination on basis of race, color, religion, national origin, and sex ADEA = prohibits discrimination on basis of AGE = those protected as a class are over 40 yrs ADA = prohibits discrimination based on disability 1981 = prohibits discrimination in connection with employment Ks To determine if these statutes apply = JURISDICTION requirements i. Is e/r covered by the act? 1. Employer = entity engaged in an industry affecting commerce who has 15 or more e/ees for each working day in each of 20 or more calendar weeks in the current OR preceding year for T7 and ADA. ADEA requires 20 e/ees. 2. How do you determine the # of e/ees an e/r has? a. Walters v. Metropolitan = Look at WHO is on the payroll for 20 calendar weeks. Dont necessarily look at whether each person on the payroll was actually working on every working day during those 20 weeks. i. NOTE = Look at time of discrimination to determine if # of e/ees makes e/r subject to T7 3. Should s/h directors (or partners) be counted as e/ees for # purposes? a. US S/C = look at the specific facts to determine whether s/h directors should be deemed e/ees under ADA. b. Factors to consider: i. Can the organization fire the person? ii. Does the organization have the authority to supervise the individuals work? iii. Does the individual report to someone higher in the organization? iv. Whether the individual had the authority to influence major decisions within the organization? v. Whether the person shared in the profits and losses of the organization? vi. POINT = if a person is an OWNER of a company, he may be able to escape being counted as an e/ee for jd purposes 4. Independent Contractors are NOT e/ees covered by these acts, just e/ees !!! ii. Is there an adverse employment action (AEA)? 1. Statutes designed to deal with only those whove suffered from an AEA 2. Examples: failure to hire OR promote, discharge or disc. in compensation 3. Exception to necessity of AEA: harassment claimsthey have their own framework of analysis and DONT require an AEA 4. Boone v. Goldin = claimed discriminated against when reassigned within NASA. Claimed the lateral xfer was more stressful than her old job. Result: NASA is covered by the act, however, her change in employment is NOT an AEA. Therefore, her claim must be dismissed. 5. Hishon v. King & Spalding = Whether denial of opportunity to be considered as a partner is a denial of a privilege of employment? Result: Can constitute an AEA action. The move from associate to partner is a term, privilege or condition of employment. If can prove her allegations (that she was discriminated against by her e/r b/c of her sex), that is sufficient to be an AEA for which she might prevail. Terms, conditions, and privileges of employment must be rewarded w/o regard to sex. 7

iii. Has the EEOC charge process been complied with, if necessary? T7, ADEA, ADA 1. 70-80K charges of discrimination are filed every year. EEOC separates the charges into those a) involving protected classes; b) those that are facially invalid; and c) those that should be investigated. 2. EEOC always attempts to get e/r to settle through mediation or reconciliation first 3. EEOC is made up of 5 members (Chairman is always member of Presidents party). It has limited rule making authority, but does issue regulations in connection with these Acts. Regulations DONT have the force of law, but courts seriously consider them as part of their analysis. It also issues interpretive guidance and policy statements. 4. Administrative Law foray: agencies make rules either through 1) adjudication OR 2) rule-making. Either way, their rules are subject to judicial review. Under adjudication the federal circuit court level will use the substantial evidence standard for findings of fact; issues of law are reviewed de novo. In rule-making, there is deferential review to facts and a de novo review of issues of law 5. EEOC Charge Process is Different in Deferral and Non-Deferral States a. Non-Deferral States = including NC i. files a charge of discrimination with EEOC within 180 days of the discriminatory act (applies in every county in NC now) 1. Scope of charge will limit what can be litigated in federal ct. If gets through charge process, cant raise other reasons for the charge once getting into court. 2. must include BASIC details of why he/she contends discrimination occurred. THINK notice pleading = why does feel he/she has been discriminated against on basis of race, color, religion, NO. ii. EEOC notifies e/r w/i 10 days and provides a copy of charge iii. E/r asked to respond w/r/t its # of e/ees, and any comparative information it may have (depending on nature of charge at stake) 1. Anything atty says on behalf of e/r = admission of e/r 2. Response generally explains why there has NOT been discrimination + provides attachments to support that contention 3. EEOC gives specific amount of time w/I which this response must be made, but will grant extensions if requested by e/r iv. EEOC has 180 days to investigate a valid charge v. EEOC issues decision = EITHER 1. Unable to determine based upon the information obtained that there has been a violation. (Doesnt mean there hasnt been a violation) 2. Cause Finding = probable cause to believe violation occurred a. At this point, it will notify e/r and attempt to being settlement discussions OR if e/r doesnt allow settlement discussions, EEOC or the private party can bring suit against the e/r

3. Right to Sue Letter a. As , make sure to have this as evidence in court b. Starts 90 day clock to file suit c. As atty for write EEOC and get all investigation information collected d. As atty for e/r, if a NO cause finding is issued to , get a copy of that in the courtroom b. Deferral States i. Same process, BUT you must file charge with the EEOC within 300 days of the discriminatory act OR within 30 days of NOTICE from the state agency that it has terminated proceedings, whichever is earlier ii. Most states are deferral states. They have state agencies charged with enforcing state wide equal opportunity employment laws or designed to deal with empt discrimination issues iv. When did the discriminatory act occur? 1. DE State College v. Ricks = R wanted tenure but it was denied to him. They offered him a terminal contract for one more year. He declined that K and brought a claim for discrimination based on national origin. In March of 1974, the BOT accepted the recommendation to deny him tenure. He filed an internal grievance. In June of 1974, BOT tendered him a 1 year K. In September of 1974 the internal grievance was denied. In April of 1975, he filed an EEOC charge. a. Rule: date the AEA is communicated to is the date of discrimination b. Result: action dismissed here. The discriminatory act occurred when R told he wouldnt have a job after the next year (June 1974). The fact that R continued to receive salary doesnt eliminate the AEA. He didnt file timely = he missed the 180 day requirement by a couple of months. 2. National RR Passenger v. Morgan = M had a race discrimination claim + racial harassment claim. CAL is a deferral state. a. Rule there: w/r/t discrete acts of discrimination or discrete AEAs (ie failure to hire, failure to promote or termination), EEOC clock starts ticking on date of AEA b. Significance: Once you are told youve been denied a promotion, f/e, you have 180 days to file a charge (in ND states) PERIOD. i. Example: files a charge alleging denied 4 promotions based on his race = 2 years ago, 20 months ago, 100 days ago and 20 days ago. wants to recover for all 4 failure to promotes. Before this case, some circuits LET the pursue claims more than 180 days old, if they were somehow related (like if had the same supervisor that kept denying his promotion requests) ii. Court also held that hostile work environment claims dont happen in a single day, though. Acts of harassment that are more than 180 days old arent necessarily in or out of consideration. You have to look at whether the acts are part of the same acts of harassment (same supervisor, internal action.) LOOK at the TOC. v. Cases from Deferral states: MAJORITY rule 1. Oscar Meyer v. Evans = in a deferral state, must commence proceedings with a state agency. Rationale: if state goes through its own conciliation process and does its own investigation, federal government may not have to get involved at all. If you do file in a deferral state and there is a state law SOL that is shorter 9

than the federal SOL for discrimination under these acts, the federal SOL isnt precluded 2. Mohasco v. Silver = recognizes that a state agency in a deferral state is going to have exclusive jd for at least 60 days. Practically, you want to file a charge with the state agency BEFORE the 240th day, so as to have time to get the claim filed in federal court in case the state ceases its proceedings. NOTE = you can file charges with the state agency AND file in federal court at the same time. When state proceedings are ceased, then the federal charge will revive 3. Edelman v. Lynchburg College = E denied tenure. He alleged sex, religious and NO discrimination. He wrote a letter to the EEOC alleging this discrimination but it wasnt sworn. He got it verified on day 313, clearly too late, even in a deferral state. T/C = a timely charge requires a timely verification. Too late here. a. What is a charge? US S/C noted that EEOC had a regulation that allowed the relation back of a verification (outside 300 day limit). Court agreed with the regulation. b. 180/300 day rule is an issue of timeliness in getting charge into EEOC. If verified later, verification will relate back to date charge received. NOTE = statute doesnt mandate charge be sent to e/r until its verified. c. PREVENTIVE law = get the form off the website and be with your client when he/she fills it out. Have it verified then, so OC doesnt have potential defenses to your claim. 4. Baldwin County Welcome Center v. Brown = lawsuit must be filed within 90 days of receiving right to sue letter. RTS letter is presumed received 3 days after mailed. So, look at date on RTS when you get it and plan on filing 80 days from that date, instead of the date on which you receive it. This way youll make sure to not be thrown out of court. 5. Occidental Life Insurance v. EEOC = EEOC is not bound by the 90 day requirement to bring suit. It doesnt have a SOL within which it has to sue an e/r. The one potential defense of an e/r = LACHES. Claim EEOC has waited 7 years or more to sue e/r and as such has sat on its rights too long. BUT, remember, e/r has received prompt notice of filed charge AND EEOC must keep e/rs informed of the progress of the action after commenced. vi. WHERE do you file these actions? 1. Can file in either State or Federal court. Generally, although state courts have SMJ to hear these cases, most s will seek removal to federal court based on FQJD (federal statutes involved) 2. Evans v. Technologies Applications a. Allegations beyond the scope of the charge will be dismissed in court b. If you ignore the administrative process of the EEOC, you lose your right to sue under the theory = cant add something in court thats not on charge c. You can supplement your charge if you realize something is missing along the way however

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III.

Discrimination / Improper Motivation / Defenses a. City of LA v. Manhart = LA had a policy where its female e/ees paid more into pension fund than did male e/ees based on rationale that females live longer, and therefore more money would be needed to support them later in life. Females brought a class action. T/C ordered a refund of all contributions made. 9C affirmed. LA defended by claiming it used sex as a proxy, not to discriminate. i. US S/C emphasized that focus of T7 is on the individual = no defense that as a class women generally live longer, b/c the specific women at issue may not live longer. ii. Facial violation of T7 b/c it draws a distinction based on sex b. Phillips v. Martin Marietta = MM had an empt policy where it wouldnt accept job apps from WOMEN with pre-school age children; didnt apply to men with pre-school age children OR women without pre-school age children. T/C and 5C affirmed MMs policy. i. US S/C reversed per curiam (without hearing arguments or getting briefed)Facial violation of T7 b/c it treats men differently than it treats women. c. Role of Motivation and Good Cause i. McDonald v. Santa Fe Trail Transportation Company = 3 men were charged with misappropriating anti-freeze from e/r (2 white, 1 black). White men were fired and filed a charge with EEOC on basis of race discrimination under T7 and 1981. 1. Rule: T7 applies to discrimination against white folks and black folks 2. Difference b/t 1981 and T7 claims: 1981 doesnt have a limit on size of e/r; or limit on PDs that can be awarded. still has to plead and prove race discrimination. 1981 can also be filed in state or federal court. T7 does have PD caps based on the size of the e/r. 3. WHEN a race discrimination claim comes up, think about 1981, T7 and whether you have a potential state claim (under empt at will exception) 4. POINTS of this case: a. 1981 applies to all persons but still have to prove complaint based on race. To prevail, must show he is similarly situated in all material respects with the comparator (person s comparing himself to) (in seniority, discipline record, race, time period) b. Good cause for terminating someone (ie theft) is not necessarily a defense to a T7 action(if e/r thought it had a good reason to fire white men b/c of the theft, why didnt it also fire the black man for theft?) ii. Goodman v. Luken Steel = 2 steel workers brought an action against e/r AND their union alleging race discrimination. When they filed grievances with their union, the union didnt do anything, allegedly to promote the greater good of ALL the members of the union, and to avoid tension b/t the e/ees and the e/r. Union claimed it was acting in good faith in the interests of all of its members. T/c found that e/r had engaged in some discrimination and so had union against s. 1. Rule: just as good cause isnt a defense, good faith doesnt negate a racially motivated decision. Union still processed grievances of non-African American e/ees differently than African American e/ees. 2. Aside = T7 applies both to e/rs and to how unions treat union members = it is an unlawful practice for a Union to exlude, or to expel from its membership, or otherwise to discriminate against any individual b/c of his race, color, religion, sex or national origin. The Union discriminated on the basis of race by the way in which it represented the workers. The deliberate choice NOT to process grievances based on racial claims is itself discriminatory. 3. T7 and 1981 dont allow a union to refuse to file any and all grievances presented by a black person on the ground that the e/r looks with disfavor on and resents 11

such grievances. No less violative of these laws for a union to pursue a policy of rejecting disparate treatment grievances presented by blacks solely b/c the claims assert racial bias and would be very troublesome to process. iii. Gerdom v. Continental Airlines, Inc. = fired b/c didnt meet e/rs height and weight requirements. She filed a charge of sexual discrimination. Only women were allowed to pursue this job at the time. Requirements were in place to present travelers with attractive fight attendants. Continental argued that physical appearance is not regulated by T7. 1. Court = rejected defense. Even though job open to women only, requirements imposed by e/r discriminate against women b/c there are no similar requirements for men. d. Justifications for Express Use of Prohibited Classifications: Bona Fide Occupational Qualification Defense (BFOQD) i. Defense an employer may plead and prove wherein the e/r is permitted to classify its e/ees (including applicants) on the basis of religion, sex, national origin, where one of those qualifications is a BFOQ reasonably necessary to the normal operation of the particular business. 1. NOTE = race and color are NOT included 2. Also available as a defense to ADEA claims 3. Defense must be specifically pled by e/r in the answer ii. Western Air Lines v. Criswell = mandatory retirement age for captains and first officers of 60 (have most control over flying the plane). Western followed a FAA regulation that prohibited those over 60 from being captains/1Os (health reasons + public safety in flying). Western also applied that policy to flight engineers. retired at 60 but wanted to keep on working as a flight engineer. He was rejected from employment b/c of his age. sued and Western pled the BFOQ defense. 1. Defense construed narrowly and e/r must plead and prove it 2. Western argued as a class 60+ workers could affect the safety of their passengers. argued the focus should be on the individual. 3. Rule: dont look at person as a member of a class where you are reasonably able to perform an individualized assessment. 4. Rule: when dealing with safety issues, e/r must prove there are unacceptable risks to IT as an e/r OR to 3Ps in retaining the person as an e/ee iii. United Auto Workers v. Johnson Controls, Inc. = E/r initially had an assumption of the risks policy in place w/r/t lead production at its plants. If women knew about it and decided to expose themselves to it anyway, the risk was borne by the women. It then changed policy to EXCLUDE women who were pregnant or were or child bearing age from holding jobs in close connection to the lead production. Kept the AOR policy in place for men; also if you werent of child bearing age or were a sterile woman you could hold job. Group of female e/ees sue for sex discrimination. 1. COURT: this is facial discrimination under T7 (based on a womans pregnancy or ability to become pregnant). The only potential defense = BFOQ. Again, courts will narrowly construe the defense. 2. RULE: Look at occupational requirements of the job in determining whether the classification is reasonably necessary to the normal operations of the business a. Distinctions based on sex must relate to ability to perform duties of job b. Result: Danger to a woman herself doesnt justify discrimination. The safety exception (rationale that safety of passengers f/e above required policy of under 60 workers) is LIMITED to instances in which sex or pregnancy actually interferes with the e/ees ability to perform the job 12

3. NOTE: Business necessity defense applies to disparate impact cases iv. Hardin v. Stynchcomb = Sheriff takes a job application from and TELLS her he wont hire her for the job BECAUSE shes a woman (b/c the first assignment will be to work in the mens jail and sheriff had some concern over privacy issues of the prisoners). She files charge of sex discrimination. E/r pleads BFOQ, but it doesnt work. 1. Analysis: a. Is there a FACIAL classification based on sex, religion or national origin? i. If not, dont apply BFOQ? ii. If so, e/r can only look to BFOQ? b. W/r/t BFOQ - - is the classification reasonably necessary to the normal operation of the particular business? i. Focus should be on the ACTUAL job qualifications involved AND the facts of the case ii. If classification doesnt affect the persons ability to do the job, BFOQ isnt any good. If classification will affect persons ability to do job, BFOQ is OK. 2. Defense no good here because: sheriff had a hard time proving that there wasnt another way to align the duties of the deputies in the mens jail so as to allow a woman to work there AND he hadnt applied the new hire will go first to mens jail policy before either e. Justifications for Express Use of Prohibited Classifications: Affirmative Action Plans i. May be another defense that an e/r can use to a facial claim of discrimination under T7 ii. United Steelworkers v. Weber = 50% of e/rs craftsman job openings were to be reserved for blacks UNTIL the # of blacks working for the e/r was commensurate with the local labor force. 13 people get selected for the jobs = 7 of them black; W is not one of the others selected for the job opening. T/c and 5C held for W. 1. US S/C: T7 doesnt prohibit VOLUNTARY race conscious AA programs like this one IF they are valid; races are protected equally under the statute. 2. In analyzing whether AA plans are valid, consider: a. Whether the AA plan mirrors the purpose of T7? i. T7 was intended to eliminate various types of discrimination in the workplace, and to advance empt opps for minority groups. It was NOT intended to prohibit private e/rs from taking steps to affirmatively abolish race discrimination. b. Whether the AA plan trammels the interest of the non-minority e/ee? i. Does it require discharge of one race so that another can be hired? ii. Does it create a bar to advancement w/I company of one race? iii. Is it permanent? 3. NOTES a. Case opened door for court to order AA remedy after hearing on merits b. Framework for analyzing AA plans is probably different under Constitution than under T7 iii. Johnson v. Transportation Agency = AA plan required men to be passed over for promotion so that women could be promoted. City adopted plan to remedy past societal practices in connection with empt practices towards women. As one factor to consider, an e/r was permitted to look at sex where there was a significant under-representation in the particular job category or application. mad b/c a woman got job he applied for. He had a marginally higher test score and more experience in the field. Claimed sex discr. 1. Rule: BOP the invalidity of AA plan is on the e/ee. Prove the plans invalidity by the standard/test set forth in Weber 13

2. Result: lost. The AA plan mirrored T7s purpose in that it advanced employment opportunities for women. Didnt trammel the employment opportunities for men. not fired and plan only temporary until target reached.

14

IV. Discrimination / Disproportionate Exclusion HOW to prove a discrimination case under T7, ADEA or ADA = 2 methods = different remedies apply a. Disparate Treatment = INTENTIONAL DISCRIMINATION i. Can be proved in two ways 1. Direct evidence of discrimination a. Rare b/c more likely case will settle before going to trial b. Brown v. East Miss Electric Power Association = black man worked for for 20 years. Hed been promoted to a supervisory position. B had evidence that his supervisor used RACIAL SLURS during course of Bs empt with . After a customer complaint, B was given option of dismissal OR return to lineman job hed held previously. He declined prior job and was terminated. Alleged racial discrimination. i. Direct evidence of racial discrimination proven by ways the statements were made. Supervisor ALSO played an impt role in making the empt decision that affected . His racial animus was reflected through comments hed made over the years and was sufficient for a finding of racial discrimination. ii. NOTE important to pay attention to WHO is making racially derogatory comments in the workplace. For a finding of liability, it needs to be someone in a decision-making capacity b/c our focus is on Adverse Employment Action. c. Heim v. UTDOT = worked in office area of DOT and attempted to get some training for a job promotion. She didnt get it, allegedly b/c shed messed something up in the office. Comment made = I hate having %$#@^&* women in my office. i. Statement NOT direct evidence of discrimination b/c it related to e/rs feelings about women in general, NOT this particular woman. ii. When case decided, issue wasnt allowed to go to a jury trial. After the amendments allowing for a jury trial, issue arises = is comment enough to get the issue to the jury 1. In determining whether a comment is a stray remark OR direct evidence of discrimination, ct looks at: a. Whether the statement directly implicates a protected category? b. Context of the remark = does concede in jest? c. When made = how close to decision? d. Whether actually directed at and related to the decision at issue or was it some age/sex/race based comment that wasnt directed at and that was remote in time? e. Was it made by the decision-maker OR one who played a substantial role in the decision? f. NOTE = if court finds NOT stray, case may make it past SJ stage to the jury to determine if discriminatory? d. OConnor = complained e/r terminated him b/c of his age. Comments: 1) youre too old for this kind of work (2 weeks before decision); 2) its about time we get some young blood around here (2 days before decision). 15

i. STATEMENTS NOT direct evidence of discrimination despite their proximity to decision. Statements not made in context of replacing O 2. McDonnell Douglas INDIRECT evidence method of proof of discrimination a. s more often rely on this framework for proving discrimination occurred b. McDonnell Douglas: black e/ee organized and participated in a walk-in against e/r was a civil rights activist. He got fired after a layoff and reapplied for another job there. He claims race discrimination b/c he didnt get rehired. Didnt have any direct evidence; just that he applied and didnt get the job. i. Prima Facie case of intentional discrimination: 1. Is a member of a protected category? 2. Has suffered an AEA? 3. Was qualified for the job he applied for? 4. After the rejection, did the position remain open, with e/r continuing to seek applications? 5. NOTE establishing P/F case doesnt get you to the jury. Most of the time the court will look beyond p/f case to see if there were similarly situated persons treated differently, OR comments that were racially derogatory ii. If P/F established, it creates an evidentiary presumption of intentional discrimination. BOP shifts to e/r to articulate a legitimate, non-discriminatory explanation for the action. Once articulated, the presumption of intentional discrimination is dropped. iii. BOP shifts BACK to to prove by PPE that reason put forth by employer is pretextual (a mask to cover discrimination) 1. has the ultimate burden of PROOF and PERSUASION on discrimination 2. Once presumption drops, the evidence that can be used by to persuade jury is the p/f case, statistical evidence c. TX Dept of Community Affairs v. Burdine = had a failure to promote claim. Subsequent to that she was terminated. Alleges both decisions based on sex. i. Case clarified the burdens imposed on the parties once p/f case presented: 1. E/r has burden of articulating a legitimate, NONdiscriminatory reason for action (burden of production) 2. has ultimate burden of persuasion/proof a. To show that e/rs reason is pretextual, do discovery ii. NOTE = can get PDs under T7, but they are capped d. St. Marys Honor Center v. Hicks = is a halfway house. was a correctional officer. Employment changes occur and a new supervisor is promoted over . Before this time, had a good empt record. Afterwards, claims he was subjected to severe discriminatory actions, culminating in discharge. showed P/F case; e/r showed legit ND reason (accumulation of rules violations which culminated in a heated xchange with supervisor). shows some of the rules violations were for HIS subordinates and that unlike other supervisors, who werent written up for those violations, he was. He had p/f + extra evidence. 16

i. US S/C: proving e/rs reason is pretextual doesnt automatically entitle e/ee to a verdict as a matter of law. A jury or judge can certainly INFER from a finding that the legit reason is pretextual, that prohibited discrimination was the real reason for the action, however. 3. What exactly has to be shown to get past SJ stage and to the jury? Circuits were split a. Pretext Plus standard = have to raise a genuine issue of material fact that alleged legit reason is pretextual + have some evidence that real reason for action was discriminatory i. Vaughn v. Metrohealth = supervisor had to make a decision for a position b/t a 45 year old woman and . Company had produced a manual on how to downsize - - and they used following the procedure set forth in their manual as their legit ND reason for the action. But then, the decision maker admitted in a deposition that he hadnt even read the manual and that instead he based his decision on personal experience. 1. 4C = there was evidence to show that original reason was pre-textual, but there was no additional evidence that AGE had anything to do with the decision. Ct looked at the qualifications of the 2 women; no age related comments made by decisionmaker. Mgr just made a subjective decision. No evidence of age discrimination under P+, SO claim couldnt get to the jury b. Evidence that legit reason was pretextual is enough i. Reeves = worked for company for 40 years. He was eventually fired, he alleges for age discrimination, while e/r says it was for falsifying attendance records. 5C said there was enough evidence to find legit reason to be pretextual, but not enough to show that AGE was the real reason for the action (applying pretext +). Plaintiff showed PRETEXT, but not the +. He lost. 1. US S/C: a p/f case + sufficient evidence for a juror to reject the alleged ND reason is enough to sustain a finding of liability. NO requirement for the PLUS! a. Doesnt mean just showing reason pretextual will allow to win. JURY still decides liability 4. Price Waterhouse v. Hopkins = wanted to be a partner, but was deferred for a year, b/c she was abrasive with staff and subordinates (although a really good acct). When told she wasnt going to make partner, she was also told she was too macho, overcompensated for being a woman, needed to take a course at charm school, should wear make-up, etc. Claimed sex discrimination in denial of partnership. T/C = . a. What if e/r has two reasons for AEA = one legit and one non-legit? b. Rule: if e/r can show the same decision would have been made anyway, based upon the legitimate reason, NO liability will result. E/r must prove this affirmatively. 5. Desert Palace v. Costa = was a warehouse worker at Ceasars palace. She had a series of problems with co-workers and management. She was fired after an altercation with a co-worker; co-worker was sent home for 5 days only. Claims sex discrimination. T/C instructed jury that if her sex was a motivating factor in 17

the adverse empt action, then the e/r was liable. E/r didnt object. Court also gave a mixed motive instruction = if sex was a motivating factor, even if was motivated by other lawful reasons, you are to return a verdict for . objected claiming there was no evidence, no statements and jury shouldnt have gotten the mixed motive instruction. a. In 1991, Congress provided by amended that if a is able to prove that an unlawful consideration was a motivating factor for the empt action, the e/r is liable. BUT, if the e/r can prove the same decision would have been made, regardless of the unlawful consideration, it will limit the relief that a can obtain. (IOW = even though a might get a verdict that shed been the victim of sex discrimination, but that decision wouldve been made anyway, might not get any front or back pay.) b. US S/C looked at requirements needed before giving mixed-motive jury instructions. Until this case, you had to have DIRECT evidence of prohibited discrimination in order to get a mixed-motive instruction (ie you need to act more like a lady b4 youll become a partner.) c. RULE = to get a mixed-motive instruction, you dont have to have direct evidence of prohibited discrimination any longer. d. Courts result: it was appropriate for to get a jury instruction where jury is asked whether sex was a motivating factor and if it was, then is entitled to a verdict in her favor even if the s actions were motivated by a lawful reason e. Significance of case: when representing e/ee, ensure the language in jury instruction has this language: whether sex was a motivating factor in the empt decision 6. Doctrine of After-Acquired Evidence: McKennon v. Nashville = secretary afraid she might be fired because of her age so she copied some confidential documents as insurance. She was then fired as part of a RIF program. Company didnt find out she had the documents until after her termination. Secretary claims age discrimination. Company argues it would have fired her anyway for copying the confidential documents. a. AAE doesnt bar discrimination claim, BUT it will effect e/ees remedy. Cant get frontpay OR be reinstated, BUT you can still get backpay (calculated from date of unlawful discharge to date of actual discovery of new information). b. Rule: where e/r seeks to rely on AAE of wrongdoing, it must FIRST establish that the wrongdoing was of such severity that e/ee in fact would have been terminated on those grounds alone if the e/r had known about the behavior at the time of discharge.

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b. Disparate Impact = Policy has adverse impact on someone in a protected category i. T7 prohibits practices that are neutral in form but discriminatory in effect. ii. Common examples of DI: aptitude and intelligence tests, education or work history requirements, arrest records, garnishment records, or height/weight/strength standards. iii. G/R: if a neutral practice excludes a disproportionate % of a protected category, it violates T7 UNLESS e/r can show that practice is job-related and consistent with business necessity iv. Notes on DI cases: 1. NO DI cases under 1981 - - you have to prove intentional discrimination 2. Cant make a DI claim against a governmental entity regarding race disc 3. All DI cases are bench trials; cant recover PDs (only FP, BP or injunctive relief) v. How to prove a DI case: 1. must show e/r uses a particular empt practice that causes a DI on basis of race, color, religion, etc. 2. Defendant has a potential defense = attempt to persuade court that the challenged practice is job-related and consistent with business necessity 3. might then show that there is an alternative selection procedure that doesnt have the same discriminatory effect vi. Griggs v. Duke Power = e/r required a hs diploma and passing 2 aptitude tests before an e/ee could get a promotion. Apparently, tests operated to exclude black people from getting promotions OR at least it affected them disproportionately than other races 1. Rule: any requirement MUST have a manifest relationship to the empt in question. If an empt practice which operates to exclude someone in a protected class cant be shown to be related to job performance, the practice is prohibited. 2. Result: ALSO, found that NEITHER the high school completion requirement NOR the general intelligence test was schown to bear a demonstrable relationship to successful performance of the jobs for which it was used. vii. Legault v. Arusso = 3 part test to become a firefighter. Second stage involved a physical agility test. NO female applicant passed this stage, though many passed the other two. Most of the men applicants passed the test. One man was excused from the selection process and was offered a training position without having to take any of the tests. L complained and the mayor put L and another woman into the training program. They finished first and second academically, BUT the fire chief REFUSED to hire them b/c they failed the physical agility test. 1. Under DI, a facially neutral testing procedure violates T7 if it disproportionately excludes female applicants from the hiring process and is not justified by business necessity. 2. Proving a DI case = the burdens: a. must establish a p/f case by demonstrating that a particular testing procedure disproportionately excludes women i. L produced evidence that the hose pull and obstacle course were heavily dependent on upper body strength which the AVERAGE woman didnt possess, resulting in disparate impact on women. ii. A showing of intentional discrimination is NOT required b. E/r must show the procedure is job-related and consistent with business necessity. i. E/r can do this in 3 ways: 1. Empirical or criterion validity (demonstrated by identifying criteria that indicate successful job performance and then correlating test scores and the criteria so identified) 19

viii.

ix.

x.

xi.

2. Construct validity (demonstrated by examinations structured to measure the degree to which job applicants have identifiable characteristics that have been determined to be important in successful job performance) 3. Content validity (demonstrated by tests whose content closely approximates tasks to be performed on the job by the applicant.) ii. argued content validity 1. CT = to demonstrate content validity an e/r MUST show its testing procedures accurately test important skills at a level commensurate with that legitimately required by the job 2. HERE fire department had failed to update the job requirements and had failed to validate the testing procedures through an expert c. Even if e/r meets that burden, may STILL establish a T7 violation by showing that the e/r has refused to adopt a readily available nondiscriminatory alternative to the challenged practice Daniels v. Pipefitters Association = Union operated a job referral service. The procedures the union used had a DI on blacks. Union officials also made a lot of racial slurs. sued for DI and DT. 1. Rule: union has a duty of fair representation Albemarle Paper Co. v. Moody = gave IQ tests and had hs diploma requirements. Company attempted to validate tests, but failed to look at the specific job skills. 1. Rule: T7 forbids the use of employment tests that are discriminatory in effect UNLESS the employer meets the burden of showing that any given requirement has a manifest relationship to the empt in question a. BOP shifting i. shows p/f case (has shown tests select applicants for hir or promotion in a racial pattern significantly different from that of the pool of applicants) ii. E/r attempts to show tests are job related 1. Rule: discriminatory tests are impermissible UNLESS shown, by professionally acceptable methods to be predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated iii. can STILL attempt to show that other tests or selection devices, without a similarly undesirable racial effect, would also serve the e/rs legitimate interest. (This type of showing would be evidence that e/r was using tests merely as a pretext for discrimination) Connecticut v. Teal = written exam requirement. White e/ees had a higher passing rate. E/r argues Bottomline Theory of Defense (they had an AA plan where they hired a certain amount of black e/ees regardless of whether they passed the test or not.) 1. US S/C = rejected BL defense. You have to look at the empt practice that is discriminatory. This practice had a DI, so s had burden of showing job-related. E/r didnt show that, so they lose. Watson v. Fort Worth Bank = black female e/ee passed over four promotions. White supervisors used their subjective judgment in making promotions. 1. can challenge subjective hiring or promotion practices under DI model: 20

a. must ID the specific empt practice(s) that is responsible for statistical disparities b. must prove causation = that practice CAUSED the disparity (done through statistical info) c. then has burden of producing evidence that its practices are based on legitimate business reasons d. then must show that other tests or selection devices would have served the e/rs legitimate interests xii. Wards Cove v. Atonio = Cannery jobs for unskilled laborers were given mostly to nonwhites. Non-cannery jobs were skilled positions that paid more, and were given mostly to whites. Non-cannery and cannery personnel lived and ate in separate quarters. 1. RULE: if absence of minorities holding such skilled positions is due to a dearth of qualified non-white applicants (not e/rs fault) the e/rs selection method or employment practice cant be said to have had a DI. (IOW comparing the racial imbalance b/t these two job categories is NOT evidence of discrimination. You must look at the qualified labor pool. If the pool from which e/r is doing the hiring is mostly NON-white, then its not surprising that positions are filled mostly by non-whites.) 2. Handout on BOP in DI cases

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V.

Harrassment a. Applies to T7, ADA, ADEA b. Potential defense of e/r = promulgation of an anti-harassment policy c. Daniels v. Essex Group = Racial harassment: dummy hanging from doorway; racial graffiti. Mgmt did 0 when D complained. He was the only black person working in part of facility. i. Elements = must prove ALL these elements to prove harassment by PPE. 1. E/ee was subjected to racially offensive acts or statements, at least one of which occurred within 180 days (in NC) of filing of EEOC charge 2. Conduct was unwelcome. E/ee must not have solicited or invited the activity, and must have regarded the activity as undesirable. 3. Conduct must have been based on the individuals race and resulted in a work environment so filled with discriminatory intimidation, ridicule or insult that it materially altered the conditions of employment. a. Was discrimination severe or pervasive? 4. At time conduct occurred, e/ee must have subjectively believed his work environment to be hostile = subjective 5. Conduct must have been sufficiently severe or pervasive that a reasonable person would find the environment to be hostile = objective a. TOC test b. Factors to consider: i. Frequency of the conduct complained of ii. Severity of the conduct iii. Whether the conduct was physically threatening or simply rude iv. Reasonable expectations of unpon entering a workforce v. Effect the conduct had on s emotional well-being c. T7 doesnt prohibit: all verbal or physical harassment in workplace (just harassment based on protected categories); all abusive language, teasing, cursing or rudeness (prohibits discrimination based on protected categories). 6. Must be some evidence which justifies holding the e/r responsible for the behavior of its e/ees. (Recall T7 claims have to be brought against e/r, not supervisor). 7. NOTE a. Elements will be the same regardless of the type of harassment b. Framework will be the same to determine whether the individual was subjected to a hostile work environment d. When can you hold an e/r liable for the acts of an e/ee? ( cant sue co-worker under T7) i. Ferreger v. City of Boca Raton = lifeguard complained that 2 of her supervisors had made improper sexual comments and advances towards her. She quit her job and sued the city and the individual s under FL state law. City did have a SH policy, BUT the Marine Safety Division never got a copy of it. 1. US S/C analysis to determine whether HWE existed a. Was there a HWE based on sex? i. Look at Objective and Subjective tests b. Tangible employment action taken as a result of harassment? i. Rule: e/r that seeks to avoid liability for SH has an affirmative defense where there is no tangible AEA taken as a result of the harassment, IF: 1. E/r can prove he used reasonable care to prevent and correct promptly the sexually harassing behavior 22

a. Promulgation of a policy against SH if policy has been communicated to e/ees and if policy provides an avenue to avoid complaining directly to person who engaged in the harassment (BYPASS procedure). F/e if the supervisor you are supposed to talk to about harassment is the one who harassed , and the policy doesnt allow to go talk to someone else about it who can take action, e/r hasnt taken reasonable care to prevent SH. b. ADVISE clients (who are e/rs) to draft a straightforward policy w/r/t all unlawful forms of discrimination + to provide a bypass procedure 2. That e/ee failed to take advantage of any preventive or corrective opportunities to stop the harassment a. Look at whether e/ee used the policy in place to seek redress within the company for the harassment suffered 2. Since policy was never seen by the Marine Safety Group, it would be impossible for the City to prove its affirmative defense. ii. Burlington v. Ellerth = was an e/ee who alleged three distinct time when supervising e/ee made offensive remarks and gestures towards her, which could have been determined to be threats against her denying tangible job benefits to her. Ultimately, she got the promotion, regardless of the comments by the supervisor. She quit her job, not mentioning in a letter that shed quit b/c of SH. Later she did write in saying she was SH. 1. Did e/r have a policy prohibiting SH? YES 2. FRAMEWORK for Harassment: Did actionable harassment occur? a. Objective and subjective tests looked at on TOC basis b. If NO, an e/r is NOT going to be liable c. If YES, was the harasser an immediate or successively higher supervisor? i. If NO (ie its a co-worker) you get into a negligence standard 1. Did e/r know of harassment or should he have known of the harassment? a. If e/r didnt know of co-worker harassment and shouldnt have known about it, then e/r wont be liable b. If e/r did know or should have known about coworker on co-worker harassment, did the e/r take an immediate and appropriate corrective action? i. If yes = no liability ii. If no = e/r could be liable iii. Example: co-workers working in a plant side by side. Mrs. S complains about Mr. Js comments. Those comments are investigated and substantiated. E/r takes corrective action, including his termination. This would be an immediate and appropriate corrective action. No liability for e/r if allegations arent necessarily substantiated.

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iii.

iv.

v.

vi.

ii. If YES, then ask: did the harassment culminate in tangible AEA? 1. If yes, the e/r is liable. NO opportunity for e/r to present an affirmative defense 2. If no, an e/r would then have the opportunity to show the affirmative defense to avoid liability a. Did e/r prove the defense: i. Did e/r exercise reasonable care to prevent and correct promptly the sexually harassing behavior? AND ii. Did e/ee take advantage of systems implemented to prevent harm? iii. If so = e/r not liable. Jones v. Clinton = is President Clinton + bodyguard. is e/ee of a state agency in AR. At the SJ stage, so s allegations accepted as true. She alleges an incident at a hotel in AR where Pres made advances at her and exposed himself to her. She also alleged that subsequently she was shuffled around within her office, claiming her rejection of the advances was her boss way to retaliate against her for putting off one of his friends. She interpreted this to mean I better watch what I do, or my boss is going to fire me. 1. Framework: a. Did actionable SH occur? YES look at the conduct alleged + O/S tests b. Did the alleged harasser have immediate or successively higher supervisory authority over her? YES c. Did harassment culminate in tangible AEA against ? NO - admits she QUIT her job b/c her husband was being xferred across the country d. Can e/r show the affirmative defense to avoid liability? Depends on whether AR state agency can show 2 prong factors above. CONSIDER: i. Whether a policy prohibiting SH existed; whether promulgation had been published to Pres and his subordinates AND whether complained under system OR used a bypass procedure to complain Preist v. Rotary = e/r required to wear sexually suggestive attire to work. 1. Actionable harassment? YES 2. By a supervisor? YES 3. Did it culminate in AEA? YES, her refusal of boss demands culminated in her termination 4. Under F/E, e/r liable without an opportunity to establish affirmative defense Stacks v. Southwestern Bell Yellow Pages, Inc. = is an advertising sales rep. She alleges improper comments and conduct occurred at an out of town seminar which e/ees attended and supervisor had made derogatory comments towards women 1. Actionable harassment? (Note if were in SJ stage, think whether jury would believe the facts as alleged by ) 2. By a supervisor? NO, bulk of SH was by co-workers 3. Did e/r know of SH or should it have known? YES, b/c supervisors were present at time comments and conduct occurred 4. Did e/r take immediate and corrective action? NO; e/r could be liable Brown v. Boyd = worked at Fort Meade at commissary. was the chief of the base exchange from another region who dealt with loss prevention. They met at a nonmandatory meeting in his MOTEL room at a conference. engaged in some inappropriate touching of . reported to supervisor, who told her hed support whatever she wanted to do next. decided she just needed an apology and went to his hotel room for the second time; went to a bar with him; went back to his room with him 24

ALONE, AFTER hed promise not to harass her again. He did engage in more inappropriate conduct. reported it again. Supervisors were dumbfounded. She filed a complaint and did EEOC process. She QUIT her job, claiming IIED. 1. Actionable harassment? YES (s conduct did create a sexually hostile WE) 2. By a supervisor? YES 3. Culminating in tangible AEA? NO she quit; wasnt terminated b/c of rejection of advances. 4. Affirmative defense available if can be proven: a. Did e/r take reasonable care to prevent and correct behavior? YES i. (Yes she had a copy of SH policy and knew how it worked; supervisor told her she could complain to EEOC) b. Did e/ee take reasonable care to avoid harm? i. (No she put herself in the position to be harassed) 5. E/r not liable under T7 hereNOTE - may still have a state COA against vii. Oncale v. Sundowner = crew engaged in sex-related actions against 1. Does T7 reach SAME SEX harassment? 2. Rule: T7 prohibits discrimination because of SEX period and therefore reaches same sex harassment. a. Practically, the jury will have to consider whether the harassment was actually motivated by SEX or some other reason. If not motivated by sex, the e/r may get a verdict on the conduct being NON-SH! viii. Hogan, Wagoner and Ruff = sexual and/or racial harassment claims often might include elements of state tort law claims which can be brought in the alternative of T7. ALSO, if client misses the 180/300 day period necessary for T7, state claims = alternative. 1. IIED is a state tort law claim = must show inappropriate touching to get past the summary judgment stage! a. Hogan = only one got to jury b/c she had inappropriate touching which helped her establish E & O conduct for IIED b. Wagoner = if conduct doesnt involve some form of sexually harassing behavior + inappropriate touching (usually), hard to meet E & O standard c. Ruff = SOL for IIED in NC = 3 years from the date the emotional distress manifested. Therefore, a can reach back for conduct 12-15 years old and claim that has only recently manifested itself.

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VI.

Title VII / Civil Rights Act of 1866 a. T7 = RACE, sex, color, NO and religion discrimination. 1981 = RACE discrimination! b. 1981: grants all persons the same right to make and enforce K as is enjoyed by white citizens i. Applies to private conduct ii. Make and enforce Ks = making, performance, modification, and termination of Ks, and the enjoyment of all benefits, privileges, terms and conditions of the Kual relationship iii. ONLY applies to INTENTIONAL discrimination (use analysis of DT under T7) c. 1981 v. T7 i. No charge process under 1981. Important if client has missed the 180/300 day window for filing EEOC charge. Though barred as to T7, not barred as to 1981 claim. ii. No caps on damages under 1981 iii. 1981 doesnt require a minimum # of e/ees for the act to apply iv. BL on 1981: provides a remedy for ALL citizens if they have been discriminated against based on their race. It permits someone to state a claim that theyve been discriminated against based on race, even if they are white d. SOL on 1981 claims: Look at each state to the MOST comparable state tort law; NC = 3 years e. Filing a 1981 claim: Concurrent jd; if defending you may want to remove to federal court BUT you must do so within 30 days of being served + all s must consent in removal petition f. Does 1981 reach those employed at will OR only those with empt Ks for a definite term? i. Spriggs v. Diamond Auto Glass = s supervisor at Diamond used racial slurs frequently. was an AW e/ee without a K. Brought a claim for constructive discharge as a result of racial harassment. Argument: I was forced to quit b/c of my race. defends by claiming 1981 doesnt apply to AW e/ees. Since they didnt have a K with e/ee, cant be subject to liability under 1981. 1. 4C rejected notion that 1981 doesnt apply to AW e/ees. At minimum there is a unilateral contract in that when e/ee shows up for work on a particular day, hell be paid for that days work. Ct finds this is sufficient to create a K which can provide a remedy for those employed AW ii. Saint Francis College v. Al-Khazraji = Iraqui professor became associate professor at SFC. Applied for tenure and was denied twice. Claims denied job b/c of Arabian race. 1. What does RACE encompass? Congress intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely b/c of their ancestry or ethnic considerations. Such discrimination is racial discrimination, WHETHER OR NOT it would be classified as such in terms of modern scientific theory. 2. Result: If could prove on remand that he was subjected to intentional discrimination based on the fact that he was born an Arab, rather than solely on the place or nation of his origin, or his religion, he will have made out a case under 1981. iii. Parr v. WOW = was a white man married to a black woman. He interviewed for a job and was told hed probably get it. Mgr told him = we dont sell insurance to black people or employ them. told the empt agency whod sent him there. Empt agency told WOW of his interracial marriage, and didnt get the job. sued for race discrimination, based on his ASSOICATION with his black wife. 1. MOST courts find that 1981 can reach associational claims 2. MOST courts also agree that T7 reaches associational claims iv. Fair Employment Council of WA v. BMC Marketing = testers sent out to check on e/rs hiring practices. Found they didnt have a claim b/c they did NOT have a bona fide intention to take a job if either of them were actually hired by the e/rs they were testing. Therefore, any K they wouldve entered wouldve been voidable. 26

g. What does 1981 NOT cover? Discrimination based on religion, sex, age, disability i. If ANY of these are pled, the complaint will fail for failure to state a COA for which relief could be granted h. 1981 has been interpreted by most states to include a substantive right of freedom from RETALIATORY discharge i. Danco v. Walmart = Guiliani (sole owner of Danco); gets a K with Wal-Mart to clean up the parking lot. G (Mexican-American) is subjected to racial grafitti, racial slurs, and some physical violence. G complains to mgmt but nothing is done. A new GM comes into play and soon thereafter s contract was terminated, allegedly b/c wasnt doing a good enough job keeping the lot clean, and was getting in trouble for it with EPA. 2 years later, sued Wal-Mart under 1981. T/c gave a favorable verdict on racial harassment = $650k. At charge conference, s attys failed to object to courts instruction that corporation = Guiliani. K at issue was with , NOT Guiliani. B/c noone objected, h/e, the jury was allowed to hear and consider Gs emotional distress and harassment as the basis of s 1981 claim. If attys had been paying attention to the charge, they couldve at least argued that an entity cant FEEL harassed/experience ED. 1. 1981 does reach independent contractors

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VII.

Religious Discrimination / ADA a. T7 prohibits e/r from failing or refusing to hire, discharging or otherwise discriminating against a person b/c of his or her religion b. 3 types of religious harassment claims i. Disparate treatment claim 1. I was fired b/c Im Jewish. Usually, you see MD framework used ii. Religious harassment claim 1. Farragher/Ellerth framework used iii. E/rs failure to reasonably accommodate an e/ees religious beliefs on the job c. G/R: all types of religious observances, practices and beliefs are covered w/I scope of T7. E/r has a duty to reasonably accommodate these ABSENT undue hardship i. Religious practices = moral & ethical beliefs as to what is right and wrong which are sincerely held and have the strength of traditional religious views ii. Religious beliefs = 1. ROT = beliefs of e/ee may be broad, BUT reasonable accommodation by e/r need only by slight. d. Ansonia v. Philbrook = was a member of the worldwide church of God which had 6 holy days during which its members werent supposed to work. His unions CBA allowed for 18 days of leave/year, but only 3 could be used for the observance of religious holidays. At first hed lie about what he was doing on his leave days; then eventually, hed tell the school, but they refused to pay him for the extra RELIGIOUS days he was taking. The BOEs response: you can take 3 days off of UNPAID leave for those holidays. i. Framework for accommodation cases 1. presents p/f case a. must plead and prove a bona fide religious belief that conflicts with an empt responsibility b. must p/p informed e/r of this belief c. must p/p disciplined or otherwise suffered some detriment for failure to comply with the conflicting empt requirement 2. E/r has burden of proving offered a RA and alternative accommodations proposed by e/ee would be an undue hardship a. RULE: once e/r demonstrates its provided a reasonable accommodation, its met its burden under the statute e. TWA v. Hardison = TWA operated a 24 hour maintenance facility in Kansas City, MO. had worked for TWA for a long time. Under the CBA, those with seniority () could get better shifts. joined the WWCG which had its Sabbath from sunset on Friday to sunset on Saturday. He had enough seniority not to work on Saturdays, but was then xferred to another section within the company (where he didnt have as much seniority). TWA didnt have a problem letting him off on Saturdays if he couldve worked it out with other e/ees, but he couldnt. approached e/r and said: I cant work on Saturdays and noone else will work for me; therefore, you have to let me work 4 days/wk OR pay someone overtime to work for me during that time. TWA said NO! When didnt show up for work on a Friday night, he was terminated. i. presented the P/F case ii. E/r demonstrates reasonable accommodation and undue hardship of alternatives 1. if e/r has to bear MORE than a de minimis cost to reasonably accommodate the e/ees religious belief/practice, then the cost = undue hardship 2. E/r NOT required to violate a CBA to reasonably accommodate s religious beliefs, NOR to pay someone overtime to RA s religious beliefs f. EEOC v. Townley = Ts ran a mining operation. Had made a covenant with God to run it like a Christian operation. As such, they required all of their e/ees to attend a devotional service once a 28

week. E/ee went to services for a while, but then decided not to go b/c hed become an atheist. Ts refused to let him out of going to devotions. EEOC brought suit to enjoin Ts practice i. Court: EEOC presented p/f case. Ts failed to provide RA to e/ees religious belief AND to show that doing so would be an undue hardship. Spiritual costs are NOT sufficient costs to constitute an UH g. Defenses to Religious Discrimination i. Religious Educational Institution Exemption = Killinger v. Samford University: hired by divinity school at Samford to teach undergrads. Terminated b/c he and the dean didnt share the same views on TEACHING religion. receives A LOT of funding from the Baptist Convention; trustees of the school are on the Convention board, etc..Look at TWO potential defenses of Samford and find both apply: 1. Rule: T7 does NOT apply to a religious corporation, association, educational institution or society with respect to the empt of individuals of a particular religion to perform work. 2. Rule: NOT an unlawful empt practice for a school, college, university, or educational institution of learning to hire e/ees of a particular religion if such s/c/u/e/ IS partly/wholly owned, supported, managed by a particular religion, religious corporation, association or society 3. Since Samford is SUPPORTED by Baptist Convention, its not unlawful for it to desire to hire ONLY individuals who believe in the tenets of the Baptist faith ii. Ministerial Exemption = EEOC v. Roman Catholic Diocese of Raleigh: sues for sex discrimination in getting fired and not promoted by the Church. 1. Rule: where e/ee occupies functional status of clergy in a given religious institution, courts interpret 1A to include a ministerial exemption to T7s application. FACT-specific inquiry involved here! 2. Result: court found s job was the functional equivalent of clergy b/c MUSIC is a VITAL part of the liturgical services! Therefore, 1A exemption applied to protect church against s claim; claim dismissed.

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VIII. ADA = Americans with Disability Act a. Applies to e/rs with 15 or more e/ees ONLY b. Protects any qualified individual with a disability who can perform the essential functions of the job with or without reasonable accommodation c. Prohibits e/rs from discriminating on basis of a persons disability, record of disability OR perceived disability d. Claims under ADA: i. Disparate Treatment ii. Disparate Impact iii. Disability harassment iv. Failure to accommodate e. First, is there a disability covered by ADA i. Disability = physical or mental impairment that substantially limits one or more of the individuals major life activities. NEEDS 2b a physical or psychological impairment! 1. Substantial limitation = unable to perform or significantly limited in performing 2. Major life activities = breathing, walking, talking, seeing, hearing, caring for ones self and performing manual tasks 3. Also includes RECORD of impairment ( may have had cancer in past, gone through treatment, recovered, but still has a record of it) 4. Perceived disability = a false rumor about a disability. HR rep says shouldnt be hired b/c hes heard has AIDS. E/r makes decision NOT to hire based on that information f. G/R: e/r must make a reasonable accommodation for a person with a disability UNLESS the e/r can demonstrate that accommodation would impose an undue hardship i. Reasonable accommodations could include = making facilities accessible, modifying work schedules, or acquiring/modifying equipment ii. E/ee needs to ASK for a reasonable accommodation 1. Doesnt have to be in writing 2. Generally, e/r isnt required to provide personal items (glasses, wheelchair, etc.) iii. E/r can ask for medical documentation associated w/ impairment that necessitates an accommodation iv. E/r doesnt have to choose the accommodation requested by e/ee, as long as the accommodation is effective 1. NOTE = different from religious accommodation cases. ADA requires e/r to look at size and financial resources of business, the nature and cost of the accommodation and the essential functions of the job. When determining the nature of the UH of accommodations, there may be different outcomes for e/rs who are bigger and more financially sound then for those that arent g. Rudenbaum = worked for Nations Bank as a marketing coordinator. NB had repeated problems with s evaluations; was xferred to another job within NB. didnt make sales calls he was required to make in that job and was rude (racially offensive conduct involved). He was THEN diagnosed with HIV+. His supervisor didnt know about it when he was initially disciplined for his work performance. She gave him one final chance to improve. A month afterwards, he applied for some HIV+ drugs through NB medical insurance program. He was terminated by supervisor. He claims termination b/c of HIV+, supervisor claims it had nothing to do with her decision. He brought an ADA claim. i. What does have to prove in ADA DT claim? (Prove through direct evid or MD anal) 1. = Member of protected class a. Qualified individual w/ disability? b. Is it a disability recognized under ADA? 30

h.

i.

j.

k.

l.

2. AEA 3. At time of AEA, meeting the legitimate expectations of the e/r 4. Discharged under circumstances that raise an inference of discrimination based on disability ii. If p/f established, presumption arises of discrimination. E/r then has BOP to show a legitimate ND reason for its action. iii. must show that reason advanced by e/r = pretextual Rogers v. International Marine Terminals = R worked for for years. Had persistent swelling in his ankle and eventually used up all of his sick days b/c of it. Took a disability leave under e/rs policy. Company went through RIF and was laid off b/c of his absenteeism prior to his disability leave. sued under ADA claiming 1) DT b/c of his disability; 2) terminated b/c perceived to have a disability; 3) associational claim of disability discrimination b/c wife had Crones disease. = termination b/c of absenteeism, not disability. i. DT claim = does R have a disability under ADA? NO b/c a 13% PP disability not good enough. Thus, not a member of protected class deserving of protection 1. bears BOP on this issue ii. Perception of Disability claim = No dice; no evidence shown that e/r perceived as disabled; e/r testified didnt perceive him as such iii. Associational claim = no dice; no evidence that e/r relied on s spouses condition in making decision or even knew about it. RECALL still have to prove that is associated with a disability under the ADA, and that e/r knew it! 1. If could show he was terminated b/c of association with someone with a disability, he could pursue a claim under ADA 2. E/r has no duty to accommodate e/ee who DOESNT have disability PREGNANCY is NOT a disability under ADA i. NOTE = if e/ee has post pardom depression, or other issues arising from pregnancy, e/r might be subjected to ADA liability Bragdon v. Abbott = Dentist had a patient who has HIV+ that hed treated for years. When patient told dentist about condition and he found a cavity, patient was told he didnt fill cavities on people with HIV+ IN HIS OFFICE, but would do it at hospital for a little more expense. sued claiming discrimination under ADA i. Disability? Yes ii. Rule: even when HIV+ person is asymptomatic, it impacts persons body on inside and substantially impairs that persons body functions of reproduction iii. E/r has defense of DIRECT THREAT that can be p/p 1. E/r not required to provide an accommodation where to do so would pose a direct threat to the health or safety of the e/ee or others iv. Lower court rejected this defense on remand When determining whether an individual has a disability, do you examine individual with or without a mitigating measure? i. Look at it with reference to the mitigating measure ii. Example: if e/ee has 2400 vision without glasses, do they have a disability under ADA? Look at their vision w/r/t to vision w/ glasses to determine whether a disability exists. Toyota v. Williams = worked for Toyota; had carpel tunnel syndrome. Initially, T said theyd modify her work responsibilities so she wouldnt have to do a lot of lifting over her head. Over time, T decided needed to be able to do the lifting to do her job; since she couldnt they terminated her. claimed violation under ADA, claiming she had a physical impairment which substantially limited her ability to perform certain manual tasks. i. Disability? ADA requires to show substantially limited in working in a broad sense, NOT JUST at this job or type of work 31

m.

n.

o.

p. q.

r.

s.

t.

ii. Rule: Look at whether individual has an impairment that prevents or severely restricts her from doing activities that are essential in most peoples daily lives. Impairment must also be permanent or long-term iii. Activities essential in daily life = performing household chores, and personal care. iv. Result: could do activities essential to daily life, just not THIS task at work. Therefore, she failed to establish disability under ADA Martinson v. Kinney Shoe = M had worked for for a long time; had been diagnosed w/ epilepsy. He was mgr of store in the mall, would often pass out for 10-20 minutes at a time, and usually worked by himself in the store. Concerned about theft, terminated ; brought action under ADA i. was a qualified individual w/ disability under ADA, but his p/f case failed b/c he couldnt establish that he could perform the essential functions of his job (or meet the legitimate expectations of his e/r) Shafer v. Preston Memorial Hospital = was a nurse who stole RXs from the hospital pharmacy. She was terminated while at rehab. Claimed disability under ADA b/c she was a recovering drug addict. i. Potential defense of e/r: termination of e/ee who is currently engaging in use of illegal drugs is NOT protected under ADA ii. Issue = was CURRENTLY engaged in using drugs when fired? 1. claimed in rehab when terminated, so use of drugs not current. E/r claimed investigated a couple of days before terminating her and knew about drug addiction. 2. Result: court found nurse currently addicted at time of termination, w/o regard to rehabilitation. ADA didnt provide a claim for her. Cleveland v. Policy Mgmt = When has told SS Disability Administration that they are disabled, but then brings a claim under ADA claiming they can work w/o regard to disability, are they judicially estopped from bringing ADA claim? i. Individualized inquiry is necessary = not necessarily inconsistent to tell SSDA cant work and to claim ADA violation (disability but able to work) Reasonable accommodations that must be made UNLESS establish UH if e/ee has disability i. Job restructuring; part-time or modified work schedule; acquiring/modifying equipment Can an individual OTHER than e/ee ask for a reasonable accommodation for the e/ee? i. NOT estopped for failing to ask at the beginning of empt for a RA ii. No particular time within which the request must be made iii. E/r may always request documentation of disability What can e/r tell other e/ees about someone whos requested a RA? ADA prohibits telling other e/ees about individuals disability and e/rs RA of that disability. E/r should say = we treat each e/ee individually Reasonable accommodation analysis: i. Myers v. hose = bus driver with serious health problems requested paid leave to get healthy. E/r denied request, claiming he wasnt an e/ee with a disability under ADA. didnt ask for unpaid leave to be an accommodation. 1. ADA doesnt require an e/r to make RAs for an otherwise unqualified e/ee ii. What does reasonable mean? Usually unreasonable to expect an e/r to make an exception to a CBA, seniority agreement Undue Hardships: nature/cost of accommodation; overall financial resources of facility making the accommodation; overall resources of e/r

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u. Asking about disability issues during the employment phase? i. Pre-offer 1. E/r cant make any disability related or medial inquiries OR require an applicant to take a medical exam (doesnt include drug tests or physical agility tests) 2. Cant ask for medical history of applicant OR for RXs being taken 3. Applies to OBVIOUS and non-obvious disabilities ii. Post-offer but pre-employment 1. Can CONDITION a job offer on e/ee having a medical exam 2. If a disability is discovered, then RA issues will come into play. Job offer may be withdrawn ONLY if decision is consistent with business necessity iii. Post-employment 1. Once e/ee asks for RA, e/r permitted to ask for documentation. Before RA requested, e/r shouldnt ask anything about medical/disability history 2. Once RA requested, e/r can require e/ee to go to an e/r related physician for testing 3. Cant disclose that RA is being made for e/ee to other e/ees in the workplace

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IX.

ADEA/ FMLA / NC Wage and Hour Act / Fair Labor Standards Act / Equal Pay Act a. ADEA = Age Discrimination in Employment Act i. Unlawful to discrimination against an individual b/c of his/her AGE ii. Protected category = individuals 40+ 1. Have to be 40+ AT TIME OF discriminatory empt action iii. E/r must have 20 or more e/ees iv. Have to go through EEOC charge process BEFORE filing an action 1. Deferral v. Non-Deferral states processes must be considered v. Can get jury trials, but have to demand in complaint vi. To show Disparate Treatment 1. E/ee covered by act 2. E/ee suffered adverse empt action by e/r covered by act 3. AEA arose under circumstances in which age was a determining factor in AEA a. Proven by direct evidence or MD framework vii. Can have an age harassment claim 1. Use Farragher/Ellerth framework viii. OConnor case: e/ee was fired at 56 and replaced with a 40 year old. went through EEOC process and got a RTS letter. Claim was dismissed at t/c b/c court found replacement person had to be UNDER 40 years for ADEA to apply. US S/C rejected that holding. 1. In an ADEA DISCHARGE case, must show a. In a protected age group b. Discharge c. At time of discharge, was performing at a level that met e/rs legitimate empt expectations d. Replaced by someone under circs which permit a reasonable inference of age discrimination e. Ct held = when discharged e/ee is replaced by another close in age in the protected category, fails to establish AD under ADEA ix. Coco v. Elwood Care = was a maintenance supervisor in an elderly care home. He was required to document all safety and maintenance problems in a weekly report and then ensure they were fixed. At deposition, he conceded all the problems werent getting fixed. He claimed AD b/c the company hired a replacement in his 40s the day before he was terminated AND the company didnt follow the discipline procedure in its empt handbook. He claims he got fired b/c of his age. 1. CT: found was over 40, suffered AEA, and e/r employed over 20 e/ees. However, there was evidence that he wasnt performing up to his e/rs legitimate empt expectations. Cant go to the pretext argument, UNLESS establishes p/f. x. Hamilton v. Catepillar, Inc. = REJECTION of REVERSE age discrimination claim 1. offered early retirement to work force if over 50 + had more than 10 years of service with . is over 40 with 10 years of service. claims he was discriminated against b/c of his age by not being offered early retirement benefits. xi. Hazen Paper = hired at 53 years of age and fired 9 years later. claims terminated b/c 1) age and 2) ERISA claim (argues was trying to avoid his pension vesting at the ten year mark). T/c = judgment for . 1. Situation comes up often where e/r decides to reduce costs and eliminates jobs of high-paid e/ees. Effect of this is that middle management loses its jobs. Most of those people are over 40. E/ee claims DT or DI b/c of companys action. 2. Rule: cant look to some factor (pension vesting) correlated with age to prove DT. must prove the reason for the AEA was in fact age discrimination 34

3. DI claims: recognized by 3 circuits under ADEA; rest dont recognize one xii. DEFENSES: 1. BFOQ = will only come up where there is no dispute that e/ee was fired b/c of age. E/r is not hiding the ball. a. Use only when there is an express acknowledgment that AGE was a factor in decision of termination b. Rule: e/r has burden to prove that age requirement was reasonably necessary to the normal operation of the business c. Practically, this wont come up often 2. RELEASES a. Oubre v. Entergy Operations = worked at a power plant in LA and received several poor performance evaluations. Supervisor told her they needed to see improvement OR she might be terminated OR that theyd offer her a severance package NOW if shed sign the release. She opted to sign the release and get the money. She filed an EEOC charge, claiming termination b/c of age, got a RTS letter, and filed suit. e/r claimed shed signed a release. argued that release didnt comply with the Older Workers Protection Act b/c it gave her less than 21 days to consider it. At trial, stipulated that release didnt comply with Act, but argued that had ratified the release b/c shed kept the $ ( shouldnt keep the money AND be able to sue us). US S/C interpreted the OWPA and set forth very specific requirements which have to be met for a release to be valid in the ADEA arena i. Requirements 1. giving up his or her rights under ADEA must have at least 21 days to consider the offer a. NOTE e/r can make e/ee sign on any other type of empt claim the same day and release will be valid EXCEPT under ADEA 2. must have 7 days after signing release to revoke a. NOTE = no $ given until revocation pd ended 3. Release must specifically refer to individuals rights under ADEA 4. Release has to be in writing 5. E/ee has to get consideration 6. E/ee has to be told in writing to consult an attorney

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b. FMLA = Family Medical Leave Act i. Requires a covered e/r to permit an e/ee up to 12 weeks per year of UNPAID leave in connection with the birth or arrival of a new child (including adoptions) OR a serious health condition affecting the e/ee OR his or her spouse, parent or child 1. Doesnt cover siblings, in-laws, gparents, nieces, nephews OR others youre close to. H/e, if youve been reared by gparents, f/e, you could qualify, if you could prove that rearing. Same with step-parentsthink loco parentis ii. No EEOC charge process involved iii. To be a covered e/ee = 1. has to work for an e/r who employs at least 50 or more e/ees 2. must have worked for e/r for at least 12 months 3. During preceding year, must have worked 1250 hours iv. E/ee is NOT required to take unpaid medical leave if suggested to e/ee by e/r v. Issue under FMLA: 1. Whether e/ee has a SERIOUS health condition? SHC requires either in-patient care (or in the hospital) OR continuing treatment by a health care provider involving a period of incapacity of at least 3 days a. Doesnt cover = cosmetic treatments, common cold/flu, continuing stomach ache and/or headaches vi. What if e/ee takes the 12 weeks and still would like to take more time? E/r isnt required to give it. An issue may arise as to whether e/ee could qualify as a person with a disability under ADA. May be that giving more unpaid time off = reasonable accommodation vii. Rules w/r/t highly compensated e/ees: 1. These e/ees dont have to be re-instated in contrast to rank and file e/ees who take FMLA leave and are entitled to return to their former positions OR a substantially equivalent position with the same benefits and working conditions viii. 2 types of cases under FMLA 1. Disparate Treatment = I was terminated b/c I took FMLA leave or asked to take it a. Analyze under MD framework or direct evidence 2. Case to determine whether e/ee received all the benefits he was entitled to receive in connection with his or her FMLA leave

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c. NC Wage Hour Act (state minimum wage law) i. Governed by each state statutorily ii. Applies to ALL e/rs who act directly or indirectly in the interest as an e/r 1. Doesnt apply to Independent Contractors 2. No minimum e/ee numberif you have AN employee, the Act applies to you a. Exceptions (job categories excluded from act): i. Domestic e/ees ii. Taxi-cab drivers iii. Actors and actresses iv. State of NC = FLSA applies to these e/ees iii. Sets forth minimum wage requirements; specifies that an e/r is required to pay the wages hes agreed to pay the e/ee for the work performed 1. E/r must notify e/ee when hired HOW MUCH and WHEN e/ee will be paid. a. E/r must pay e/ees AT LEAST once a month (excludes commissions), but otherwise has some discretion as to how often to pay e/ees b. If wages are changed by e/r, he must notify e/ee and change can only be prospective in nature c. NOTE = s may be held PERSONALLY LIABLE for violating NGWHA. E/ee can hold his e/r, HR mgr, etc. liable; not just e/r. 2. If e/ee terminated or quits, must get paycheck through regular pay channels UNLESS boss requires it to be sent to e/ee 3. Folks on commissions and bonus plans have to be paid on the first pay date after the amount becomes calculable 4. Withholding of taxes: e/r permitted when required by state law to withhold taxes from paycheck AS WELL AS when authorized to do so by e/ee IN WRITING (dental or health insurance, f/e) 5. Vacation Pay = not required for e/r to provide e/ees with paid vacation a. If e/r offers it, he must tell e/ee in advance what policy is and must stick to that policy. b. Ambiguous vacation policies will be construed AGAINST e/rs c. When drafting them, make sure to deal with what happens with accrued, but unused vacation time (can it be used next year; can e/ee save it all up and ask to be paid for all of it at one time) iv. No EEOC charge process. If files a complaint, NCDOL will conduct an investigation, but doesnt have to file a complaint. can proceed straight to court OR send a demand letter to e/r to get things rolling. v. If successful on a NCWHA claim, can get = wages for e/ee; wages can be 2x; reasonable attorneys fees

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d. FLSA = Fair Labor Standards Act (federal minimum wage law) i. Applies to e/rs with $500k of revenue/year ii. No EEOC charge process before litigation iii. DOL regulates = again dont have to go through them; but theyll investigate if you do iv. Current minimum wage = $5.15/hour v. Applies to e/ees and independent contractors vi. G/R: e/ee must receive compensation for all hours worked over 40 hours per work-week (unless e/ee is an exempt e/ee) vii. Exempt e/ees 1. Executives a. Making $250/wk b. Supervising at least 2 other FT e/ees c. Authority to hire/fire OR at least to effectively recommend such changes d. Customarily and regularly exercise discretionary independent judgment e. ISSUE: What about a WORKING FOREMAN does he fit here? 2. Administrators a. Making $250/wk b. Engaged in primarily office/non-manual work relating to mgmt policies or the general business operations c. Exercises discretion in professional judgment 3. Professionals a. Professional e/ees whove engaged in some specialized study and perform some type of specialized work b. Typically requires a specialized degree (attys, docs, accts, nurses, engineers) 4. Outside Sales a. Must spend 80% of time making outside sales calls viii. SOL= 2 years; can be extended to 3 if there is a willful violation (e/r aware of act and fails to follow its provisions) ix. Remedy = wages of e/ee; wages can be doubled; reasonable attorneys fees x. Filing = concurrent jd but remember to think about removal from get go if defending

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e. Equal Pay Act = amendment to FLSA i. Prohibits e/r from discriminating based on sex by paying wages in an establishment at a rate less than is paid an e/ee of the opposite sex for = work on jobs the performance of which require equal skill, effort and responsibility and which are performed under similar working conditions ii. Affirmative Defense where differential in pay based on 1) seniority system; 2) merit system; 3) system that measures earnings by quality or quantity of production; 4) a differential based on any other factor than sex iii. NO EEOC process iv. SOL = 2 years within the last violation UNLESS violation is willful (3 years) 1. If there is a violation and e/ee quits, get suit filed pronto. If e/ee has continued to work after pay differential, you can still recover. 2. Look at EACH pay period v. Corning Glass v. Brennan = CG operated a plant; didnt allow women to do inspection work at night, only during the day. Men hired to do the inspection work at night were paid MORE money than women who did same job during the daytime. 1. Burdens of proof: a. must p/p that e/r is paying wages in an establishment at a rate lesser than those paid to opposite sex for equal work on jobs the performance of which requires equal work, performance or skill in similar working conditions i. showed men working at night were working under similar working conditions as women during the day ii. Similar working conditions = surroundings of e/ee AND hazards to which the different groups of e/ees are exposed to are considered b. E/r can assert affirmative defense listed above 2. Where an EPA violation is found, e/r CANNOT reduce the pay of the higher paid e/ees to REMEDY to unequal pay differential. The REMEDY is to increase the wages of the LOWER paid e/ees to the higher paid e/ees in similar working conditions vi. Kouba v. Allstate Insurance = new agents at sued claiming they were getting a lower salary than others similarly situated. s defense = when setting salary, we look at a persons education, experience and salary history (prior salary). So, there could be a woman making $60k/year and a man making $40k/year doing the same job, BUT the decision of how to reward salary is NOT based on the factor of SEX, but other factors. 1. Remember one of the Affirmative Defenses of the E/r = pay differential is based on any other factor than sex = CATCH-ALL provision

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X.

Retaliation / REDA a. Retaliation claims will be different under each statute weve studied = HANDOUT i. T7 = 2 categories 1. Opposition claim = e/r takes AEA against e/ee b/c e/ee has opposed empt practice made unlawful by T7 2. Participation claim = e/r took AEA against e/ee b/c e/ee made a charge, testified, assisted or participated in some manner in an investigation, proceeding or hearing under T7 3. must go through EEOC process ii. ADA 1. Similar language on opposition and participation claims 2. Interference, coercion or intimidation claim too (b) 3. must go through EEOC process iii. ADEA 1. Opposition and participation claims 2. must go through EEOC process iv. FLSA 1. Most like a participation claim only v. FMLA 1. Most like interference and opposition claims vi. 1981 1. Most courts have interpreted it to include an anti-retaliation component, but NONE is expressly stated in Act vii. EEPA (Equal Employment Practices Act in NC) 1. This statement of NC public policy NOWHERE says anything about a litigant being able to base a WD claim on a retaliation theory viii. REDA (Retaliatory Employment Discrimination Act) 1. 2 most commonly litigated claims in the workplace a. Retaliation from filing a workers compensation claim. If this is true, e/ee has a remedy under REDA b. Retaliation from asserting rights under NCWHA 2. NC has set up certain time limits in regard to REDA claims a. File a charge within 180 days of alleged retaliatory act w/ Comm of Labor b. DOL then has 90 days to make a decision. Can either give a RTS letter OR bring its own case. DOL will ask e/r for a statement on the claim during these 90 days. will then explain he didnt fire for a retaliatory reason, but rather for X reason. c. Typically, DOL will issue a RTS letter to on the 90th day d. then has 90 days to file suit 3. Remedies that can be sought under act: injunctive relief, lost wages, reinstatement. If willful retaliation is taken against e/ee, it can award treble damages + reasonable AFs against e/r. E/r can recover AFs if court determines case is frivolous, but not just for prevailing 4. Jury trials are allowed, if demanded 5. 3 components of a retaliation claim: a. Protected Activity i. What constitutes PA depends on what statute youre bringing suit under. F/e, PA under T7 = participation or opposition. ii. PA under the participation clause has been interpreted different than under the opposition clause 40

1. Participation clause = Participation is protected REGARDLESS of whether the allegations in the original charge were valid or reasonable. F/e = may have filed a charge of race discrimination about an alleged racially discriminatory act 9 years ago. There is obviously a timeliness issue here, BUT if an e/r THEN took retaliatory action for that 9 year old baseless claim of discrimination, that retaliatory conduct would give rise to a current claim under the anti-retaliation provision of T7 (partic clause) a. PC has been interpreted VERY broadly 2. Opposition clause = those relying on this COA need to have a reasonable, GF belief and must engage in reasonable forms of opposition b. Adverse Employment Action i. Must exist to have a valid retaliation claim ii. Getting demoted, being discharged, not being hired, not getting promoted, retaliatory relocation, suspension c. Causal Connection b/t the protected activity and the AEA i. Prove it by Direct Evidence or MD indirect evidence method (e/r can articulate a legit ND reason for AEA; e/ee must show then that AEA resulted from retaliation and the reason given pretextual) ii. Pay attention to the temporal relation b/t the protected activity and the AEA = did the AEA happen really close to e/ee filing a charge against e/r, f/e? 6. Pettway v. American Cast Iron Pipe Co: had an altercation with a co-worker and was suspended. Suspended AFTER had filed an EEOC charge (alleging race discrimination). alleges his suspension is in retaliation for his original EEOC charge. EEOC examined charge and found no cause to believe had been retaliated against. EEOC said it would reconsider the charge if would submit more information to it. submitted more information. In his letter to EEOC, stated it was clear the no cause finding was issued b/c e/r bribed the EEOC on-site investigator. E/r terminated him for his statement that e/r had engaged in bribery in the reconsideration papers to the EEOC. a. Was this AEA a violation of the participation provisions of the antiretaliation component of T7? b. Rule: communications while participating in the EEOC process are ABSOLUTELY privileged and CANT be the basis of an AEA c. Participation is interpreted very broadly. Even these untrue statements were protected and thus COULDNT be the basis of a retaliation claim d. Although EEOC proceedings are confidential, protection from being terminated b/c of information given to EEOC doesnt mean e/ee cant be sued civilly by e/r (if hes been defamed) 7. Glover v. SC Law Enforcement Division = G had been a US Marshall in SC. Lost that job w/ new president elected and became a police captain in SC law enforcement division. Didnt get along very well with her new boss. During her probationary period of empt, she was asked to give a deposition w/r/t a lawsuit against a former co-worker. She talked about discrimination she perceived when she was a US marshall; and about her successors being engaged in gross mismanagement, dishonesty, etcHer NEW boss got a copy of her deposition and told her she used poor judgment in giving gratuitous answers regarding 41

nothing to do with the lawsuit. As a result of her deposition (participation in an EEOC proceeding, lawsuit, etc), BOSS let her go. a. Direct Evidence of retaliation b. CT: termination improper w/r/t the protection afforded under the participation clause of T7 c. Rule: in participation cases, there is no inquiry into the reasonableness of the participation. If participation + retaliation = generally improper retaliation 8. Jennings v. Tinley = Laughlin was a confidential secretary for M. R reported to M. LaSauce below R. LaSauce complains to M that R has engaged in SH. M drafts a written warning to R about his conduct (unsigned) and leaves it on his desk. Next to the warning is a resignation letter by R = saying resigning and taking a job in El Paso. Laughlin sees both letters on Ms desk, having no idea which came first, copies them both and mails them to LaSauce. During litigation, M realizes what Laughlin had done. Airport terminated Laughlin for releasing these documents without consent of boss. Laughlin sues for retaliation. a. Opposition claim DOES require an inquiry into the reaosnableness of the manner of opposition b. Result: Taking property and engaging in these illegal acts was NOT reasonable and thus NOT protected opposition 9. Robinson v. Shell Oil = Shell fired R in 1991. R filed an EEOC charge against Shell. While charge pending he applied for a different job with a different company. The second e/r called Shell for a reference. R alleged Shell gave him a negative reference and that it was given in retaliation for his filing an EEOC charge against it. a. Does state a retaliation claim under T7? b. US S/C: YES. Anti-retaliation provisions apply to both current and former e/ees. EXAMINE facts alleged closely, but if alleged that an e/ee worked for E/r #1 then filed EEOC charge, then applied to E/r #2 and there was a note in e/ees file (at E/r #1s office) that E/r #2 called to ask about e/ee and E/r #1 said DONT hire him; he filed an EEOC charge against us, would have an action against BOTH E/rs

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XI.

Remedies a. Depends on what statute/state law theory sues under WHAT he or she will be able to recover b. Title 7 i. Backpay and Frontpay relate to lost wages = EQUITABLE remedies 1. BP = wages lost from time of discriminatory conduct (date of termination b/c of some protected category) until date of judgment 2. FP = equitable remedy court is PERMITTED to award IN LIEU of reinstatement (form of lost wages recoverable into the future) a. Example: gets his judgment and would really like to have a job w/ e/r. E/r doesnt have the job opening any longer. CT wont direct e/r to give a job, but it might award FP as a form of compensation to ii. Compensatory Damages 1. Can include emotional pain and suffering, mental anguish, loss of enjoyment of life, non-pecuniary losses that endures as a result of discriminatory conduct 2. To get these, case must involve INTENTIONAL discrimination cant get them in Disparate Impact cases iii. Punitive Damages 1. Must have INTENTIONAL discrimination (not awarded in DI cases) 2. Must have reckless indifference to federally protected rights OR malice 3. Have to show e/r should be vicariously liable 4. Kolstad = e/r has a defense if it can show GF efforts to comply with empt laws through training programs iv. Caps on TOTAL CDs and PDs are a function of the SIZE of the e/r 1. 15-100 e/ees = $50k 2. 101-200 e/ees = $100k 3. 201-500 e/ees = $200k 4. 501+ e/ees = $300k 5. NOTE = jury doesnt know about caps c. 1981 i. BP and FP = issue for the court as to lost wages ii. Allowed to have a jury award CDs and PDs iii. NO statutory caps on CDs and PDs d. ADA follows T7 e. ADEA i. BP and FP = issue for the court as to lost wages ii. Not entitled to CDs or PDs = according to ALL circuits; S/C hasnt had a case on it iii. Can seek liquidated damages on backpay IF can establish willful violation of statute 1. Liquidated damages are a form of double backpay f. FLSA and Equal Pay Act i. BP and it can be doubled ii. NO Frontpay allowed 1. Typically, courts award will direct that be paid properly on an forward-going basis anyway g. State Tort Law (ie WD claim under NC law) i. BP, FP = jury issue ii. CDs and PDs = jury issue h. FMLA i. BP and FP ii. No CDs and PDs iii. Liquidated (2x BP) available 43

i. NCWHA i. BP and can be 2x ii. No FP iii. No CDs or PDs j. How far ahead can FP be awarded? No hard and fast rule. Before court will award FP, it will ask whether reinstatement is an option. If so, no FP will be awarded. If not, usually 2-3 years. k. Under all statutes, if is prevailing party = reasonable attorneys fees are recoverable l. Practical information on damages: i. BP and FP can also include lost benefits, lost bonuses, lost paid vacation ii. E/r is not typically entitled to an off-set where e/ee has received unemployment compensation OR SS benefits iii. E/ees right to BP is terminated if e/ee is unconditionally offered employment by e/r (if its an applicant situation). E/ee has choice of accepting job OR continuing to accrue wage related damages from time of discriminatory action to judgment m. Mitigation of Damages i. G/R: e/ee has a duty to exercise reasonable diligence in searching for another job 1. Cant sit around and do nothing without a mitigation off-set 2. If a voluntarily removes him/herself from job market, it will foreclose BP for period was voluntarily removed ii. E/R bears burden of p/p failure to mitigate damages 1. unjustifiably/unreasonably failed to take a new job of like kind status, or failed to seek such kind of employment 2. Note = if proven, there can be an off-set to damages award for e/r 3. Also = e/rs atty should ask for any evidence in discovery that has (document wise) to prove his or her wages before termination. iii. After-acquired Evidence Doctrine: after acquired evidence of wrongdoing by an e/ee doesnt foreclose recovery, but does foreclose a FP award or reinstatement iv. Punitives 1. When asserted, look at the CAPS placed on damages first and make sure is asking for more than cap a. Have evidence to show the court on your e/rs SIZE, so the caps can be considered appropriately. If you do this AFTER jury has given a verdict you may be considered to have waived your right to object to PD award! 2. Then look at S/C Haslip, and following cases (Gore) to plead a defense to a large PD award. 3. NOTE = If these issues not pled from the get go, you may be barred from pleading a defense against PD award. n. If representing e/ee, get stipulations to every damage you can, so you can at least show court what e/r believes to be his base line liability for damages. It at least gives you a figure to start with and work up from o. If establishing emotional distress damages, call s medical care provider as a witness at trial. Not required, but helps establish damages suffered (CDs) and to be suffered. You may also want to call the s spouse to testify to the emotional impact that discrimination as had on OUTSIDE of workplace i. If representing e/r, note WHEN went to see a medical care provider for the first time!

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