Employment Discrimination

Employment Discrimination Attack Outline

Approaching an Employment Discrimination exam requires a thorough understanding of federal statutes, state laws, and various legal doctrines. Identify the appropriate theories of discrimination and apply the relevant rules to the fact pattern presented.

Theories of Discrimination

Issue Checklist

  • ✓ Disparate Treatment
  • ✓ Disparate Impact
  • ✓ Retaliation

Key Rules

Disparate Treatment requires intent to discriminate.

Disparate Impact shows facially neutral policies causing unequal impact.

Retaliation protects employees from adverse actions for reporting discrimination.

Common Issues

  • A terminated employee claims they were fired due to age (disparate treatment).
  • A policy disproportionately affects a minority group (disparate impact).
Protected Classes

Issue Checklist

  • ✓ Race
  • ✓ Color
  • ✓ Sex
  • ✓ Religion
  • ✓ National Origin
  • ✓ Age
  • ✓ Disability

Key Rules

Title VII prohibits discrimination based on race, color, religion, sex, and national origin.

The Age Discrimination in Employment Act protects individuals 40 years and older.

The Americans with Disabilities Act prevents discrimination against qualified individuals with disabilities.

Common Issues

  • An employee claims discrimination based on their race in promotion denials.
  • A worker argues they were not hired due to their disability.
Burden of Proof

Issue Checklist

  • ✓ Plaintiff's initial burden
  • ✓ Defendant's rebuttal
  • ✓ Pretext

Key Rules

The plaintiff must establish a prima facie case.

The burden then shifts to the employer to provide a legitimate, non-discriminatory reason.

The plaintiff can show pretext to establish discrimination.

Common Issues

  • The employer provides a performance issue as a reason for termination, but the plaintiff shows consistent high performance.
Procedural Requirements

Issue Checklist

  • ✓ Filing with EEOC
  • ✓ Statute of limitations
  • ✓ Right to sue letter

Key Rules

Plaintiffs must file a charge with the EEOC before going to court.

Typically, the statute of limitations ranges from 180 to 300 days depending on the state.

Plaintiffs often need a right to sue letter to proceed.

Common Issues

  • A plaintiff's case is dismissed because they failed to file with the EEOC first.
Affirmative Defenses

Issue Checklist

  • ✓ Business necessity
  • ✓ Bona fide occupational qualification (BFOQ)
  • ✓ Seniority systems

Key Rules

Employers can assert a business necessity as a defense against disparate impact claims.

BFOQ allows for discrimination if necessary for the job's essence.

Seniority systems can justify unequal treatment.

Common Issues

  • A company defends a hiring practice by claiming only certain gender can perform essential tasks.
Remedies and Damages

Issue Checklist

  • ✓ Compensatory damages
  • ✓ Punitive damages
  • ✓ Reinstatement
  • ✓ Back pay

Key Rules

Compensatory damages provide for actual losses.

Punitive damages are available in cases of malice or reckless indifference.

Reinstatement is a potential remedy for wrongful termination.

Common Issues

  • A victim seeks emotional distress damages after retaliation.
Workplace Harassment

Issue Checklist

  • ✓ Quid Pro Quo
  • ✓ Hostile Work Environment
  • ✓ Employer liability

Key Rules

Quid Pro Quo harassment directly ties job benefits to sexual favors.

Hostile Work Environment requires severe or pervasive conduct that interferes with work.

Employers can be liable for harassment by supervisors.

Common Issues

  • An employee claims that repeated offensive comments created a hostile environment.
Employment at Will & Exceptions

Issue Checklist

  • ✓ Employment at will principle
  • ✓ Public policy exception
  • ✓ Implied contract

Key Rules

Employment at will allows termination without cause.

Public policy exceptions protect employees from wrongful discharge for reporting illegal acts.

Implied contracts can prevent termination without just cause.

Common Issues

  • An employee is terminated after reporting safety violations.
Exam Approach

Structure your answer by identifying the applicable claims, outlining the facts that support each element, and applying the relevant case law. Ensure to analyze the facts in a cohesive manner while addressing counterarguments.

Time Management

Pace your time to allocate roughly 30 minutes for reading the questions and planning, with about 25-30 minutes for each subsequent question.

Mnemonics
  • D-R-C-S (Disparate Treatment, Retaliation, Class, Statute)
  • C-B-P (Compensatory, Bona fide, Pretext)
Common Pitfalls to Avoid
  • Failing to identify the right protected class.
  • Misapplying the burden of proof standard.
  • Neglecting procedural prerequisites with EEOC filings.

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