Term
| Title VII protected classes. |
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Definition
| Race, color, national origin, sex or religion |
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Term
| How many employees does an employer need to have to be subject to Title VII? |
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Definition
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Term
| Factors to determine if person is considered an employee. |
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Definition
1. Hiring party has right to supervise and assign
2. Hired party does not have discretion over when and how long to work.
3. Hiring party provides and controls instrumentalities and tools of work.
4. Job is not one requiring highly specialized skills.
5. Work is located on-site at hiring party's place of business.
6. Relationship between the parties does not have a set beginning and end.
7. Work at issue is part of hiring party's regular business.
8. Parties classify their relationship as employer/employee. |
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Term
| Can an employer adopt an English-only rule for the workplace? |
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Definition
| Yes, but only if needed to promote the safe or efficient operation of the business, and is not adopted for a discriminatory reason. |
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Term
| Is discrimination based on sexual orientation covered under Title VII? |
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Definition
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Term
| To which employers does the ADA apply? |
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Definition
| Employers with 15 or more employees. |
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Term
| Can a state employee sue the state for monetary damages under the ADA? |
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Definition
| No, states are only subject to injunctive relief under the ADA. |
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Term
| Three definitions of disability under the ADA. |
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Definition
1. Having an actual physical disability.
2. Having a record of disability.
3. Be regarded as having a disability.
4. Having a relationship to a personal with a disability. |
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Term
| Definition of actual disability under ADA. |
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Definition
| A physical or mental impairment that substantially limits one or more of an individual's major life activities. |
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Term
| When does an impairment become a disability under the ADA? |
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Definition
| When it "substantially" limits the ability of an individual to perform a major life activity as compared to most people. |
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Term
| Can mitigating measures be taken into account in determining if someone has a disability? |
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Definition
| No, except for regular eyeglasses or contacts. |
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Term
| Is an employee or applicant currently involved in the illegal use of drugs covered under the ADA when an employer takes action because of the use of drugs? |
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Definition
| No, the ADA does not cover such an employee. |
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Term
| Are episodic impairments or impairments that are in remission covered under the ADA? |
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Definition
| Yes, if it would substantially limit a major life activity when active. |
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Term
| Definition of religion under Title VII. |
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Definition
| Any sincerely held belief, even if the belief is not mainstream. |
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Term
| If an employer takes an employment action based on a believed or perceived impairment, does this violate the ADA? |
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Definition
| Yes, the employer has regarded the person as disabled and this violates the ADA. |
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Term
| What are the elements of a prima facie failure to accommodate case under the ADA? |
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Definition
1. The employee has a disability within the meaning of the ADA;
2. The employee is qualified to perform, with or without reasonable accommodation, the essential functions of the position he holds or desires;
3. The employee suffered an adverse employment action as a result of discrimination. |
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Term
| Definition of reasonable accommodation under the ADA. |
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Definition
| Any change to procedure, the job or work environment that permits a qualified individual with a disability to perform the essential functions of the position. |
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Term
| In a failure to accommodate claim under the ADA, does the employee have to prove they are qualified for the position in question? |
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Definition
| Yes, the burden is on the employee to show that she possesses the requisite skills and job requirements and that she is able to perform the essential functions of the position with or without reasonable accommodation. |
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Term
| What are some of the reasons why a job function may be considered essential under an ADA failure to accommodate analysis? |
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Definition
1. The position exists to perform that function;
2. There are a limited number of among whom the job functions can be distributed;
3. The function is highly specialized so that the person hired for the position is hired for his expertise to perform that function. |
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Term
| Is regular attendance at work and reporting for work at a particular time considered essential job functions under the ADA? |
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Definition
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Term
| What must the employee and employer engage in to determine the appropriate accommodations under the ADA? |
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Definition
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Term
| Is reassignment to another position a reasonable accommodation? |
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Definition
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Term
| What two elements are required to exist before a reassignment to another position can be considered as a reasonable accommodation? |
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Definition
1. There be no accommodation that would allow the employee to remain in her current position; and
2. The employee must be qualified to perform the essential functions of the position to which she is to be reassigned. |
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Term
| Is an employer required to bump another person from a position in order to provide an accommodation to a disabled employee under the ADA? |
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Definition
| No, bumping is not required. |
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Term
| Must an employer provide an accommodation to an employee under the ADA even if it will result in undue hardship on the employer? |
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Definition
| No, not if the accommodation would impose an undue hardship on the operation of the business. |
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Term
| Is it permissible for an employer to require medical examinations as a condition of employment? |
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Definition
Yes, as long as the offer of employment has been made and:
1. If all entering employees in similar jobs are subject to a medical exam requirements; and
2. The results of the exams are kept confidential.
Does not need to be job-related or consistent with business necessity. |
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Term
| Can an employer require current employees to take a medical exam? |
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Definition
| Yes, but only if it is job-related and consistent with business necessity. |
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Term
| How many employees must an employer have to be subject to the Age Discrimination in Employment Act? |
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Definition
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Term
| Can an employee sue a state for monetary damages under the ADEA? |
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Definition
| No, only injunctive relief. |
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Term
| How old must a plaintiff be to bring an action under the ADEA? |
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Definition
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Term
| Are reverse discrimination claims valid under the ADEA? |
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Definition
| No, these types of claims have been rejected. |
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Term
| What three types of employees are exempt under the ADEA? |
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Definition
1. Bona fide executives and high policymaking employees. Must give retirement benefits of at least $44,000 per year and employee must have been in position for at least two years.
2. Safety officers (Fire fighters, police, etc.)
3. Elected and appointed officials |
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Term
| What are the three affirmative defenses to claim under ADEA? |
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Definition
1. Bona fide occupational qualification.
2. Reasonable factor other than age.
3. Good cause. |
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Term
| What must an employer demonstrate to support a defense of BFOQ under the ADEA? |
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Definition
1. Age restriction is reasonably necessary to its primary mission; or
2. Goal of public safety. |
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Term
| What is the standard for proving a BFOQ under the ADEA? |
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Definition
| Convincing empirical evidence linking age to a decline in job competency. |
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Term
| What are the six things that a waiver under the Older Workers Benefit Protection Act must have to be valid? |
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Definition
1. Written in an understandable manner.
2. Makes specific reference to ADEA claims.
3. Does not waive rights after its execution.
4. Is supported by consideration.
5. Advises the individual in writing to consult an attorney.
6. Provides a seven day period during which the waiver may be revoked. |
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Term
| What are the primary types of employment discrimination claims? |
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Definition
1. Individual disparate treatment.
2. Systemic disparate treatment.
3. Disparate impact.
4. Failure to accommodate.
5. Harassment.
6. Retaliation. |
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Term
| Under what discrimination statutes can a plaintiff make an individual disparate treatment claim? |
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Definition
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Term
| What does an individual disparate treatment claim allege? |
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Definition
| That an employer intentionally discriminated against an individual employee on the basis of a protected characteristic. |
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Term
| When attempting to prove a case of individual disparate treatment using circumstantial evidence, what must a plaintiff prove first? |
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Definition
| Establish a prima facie case of individual disparate treatment. |
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Term
| What are the elements of a prima facie case of individual disparate treatment? |
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Definition
1. Plaintiff is a member of a protected class.
2. Was qualified for the position and performing satisfactory.
3. Suffered an adverse employment action.
4. Action occurred under circumstances that raise an inference of discriminatory action. |
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Term
| What are the elements of a prima facie case of failure to hire or promote? |
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Definition
1. Plaintiff is a member of a protected class.
2. Applied for an open position.
3. Was denied hire or promotion.
4. Position remained open and employer continued to seek applicants or it was filled by another person outside of the plaintiff's protected class. |
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Term
| Once a plaintiff establishes a prima facie case of individual disparate treatment, what happens? |
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Definition
| Burden shifts to defendant to articulate a legitimate non-discriminatory reason for the employment action. |
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Term
| Once employer articulates a legitimate non-discriminatory reason, what is the next step in an individual disparate treatment case? |
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Definition
| Burden shift back to the plaintiff (employee) to prove that the employers stated reason is not the true reason and that discrimination was the real reason. |
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Term
| In a mixed-motive employment discrimination case, what is the plaintiff's burden? |
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Definition
| To prove that the discriminatory reason was the motivating factor. |
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Term
| In a mixed motive employment discrimination case, if the plaintiff can only show that his membership in a protected class was a motivating factor, what damages is he entitled to? |
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Definition
| Only entitled to injunctive relief and attorney's fees. Not entitled to monetary damages. |
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Term
| Does after acquired evidence effect the employer's liability in an employment discrimination case? |
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Definition
| No, but can affect the amount of damages to which the employee is entitled. |
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Term
| What are the two types of systemic disparate treatment cases? |
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Definition
1. Formal discriminatory policies.
2. Pattern and practice of discriminating against a class. |
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Term
| What is the only way that an employer can defend against a formal policy that discriminates? |
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Definition
| By establishing a bona fide occupational qualification (BFOQ) |
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Term
| How does an employer establish a BFOQ? |
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Definition
| Must show that the BFOQ is reasonably necessary to the essence of the employer's business, and that all, or substantially all, individuals in the affected class cannot perform the job safely and efficiently. |
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Term
| What does the plaintiff allege in a practice and procedure systemic disparate treatment case? |
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Definition
| Alleges that discrimination against the plaintiff's protected class is the standard operating procedure of the company. |
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Term
| How does the plaintiff have to prove a pattern and practice systemic disparate treatment case? |
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Definition
| Through the use of statistics and anecdotal evidence. |
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Term
| How can an employer defend against a systemic disparate treatment case? |
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Definition
| By disproving plaintiff's statistics or by offering a non-discriminatory reason to explain the statistics. |
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Term
| What does a disparate impact discrimination claim allege? |
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Definition
| That a facially neutral policy or practice has statistically significant adverse impact on a protected class. |
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Term
| Elements of a prima facie case of disparate impact. |
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Definition
1. ID a facially neutral policy or practice.
2. Demonstrate that the plaintiff's protected class has been adversely affected by the employer.
3. Demonstrate that there is a causal connection between the policy/practice and the adverse effect. |
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Term
| Is it necessary to prove discriminatory intent in a disparate impact case? |
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Definition
| No, plaintiff does not need to prove discriminatory intent. |
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Term
| What is the rule for triggering liability in a disparate impact case? |
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Definition
| If the selection rate of the protected class is 4/5 or less the selection rate of the group with the highest selection rate, there is a conclusion that there is disparate impact. |
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Term
| How can employer defend against a disparate impact claim? |
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Definition
| Disproving the statistics or proving that the practice is job related and consistent with business necessity. |
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Term
| If an employer rebuts a prima facie case of disparate impact, does the burden shift? |
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Definition
| Yes, the plaintiff then needs to show that there is a less discriminatory alternative to the employer's practice. |
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Term
| Elements of a prima facie case of religious failure to accommodate. |
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Definition
1. Plaintiff holds a bona fide religious belief.
2. The plaintiff informed the employer of the belief.
3. The belief must cause a conflict with some job requirement.
4. The employer must take adverse action based on the conflict. |
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Term
| If the plaintiff makes out a prima facie case of religious failure to accommodate, what burden does the employer then have? |
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Definition
| Employer has a duty to explore whether a reasonable accommodation exists. |
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Term
| Are religious organizations subject to religious accommodation claims? |
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Definition
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Term
| What is a plaintiff alleging when she brings a harassment claim? |
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Definition
| That the employer has detrimentally altered the plaintiff's terms and conditions of employment. |
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Term
| Elements of a quid pro quo harassment claim. |
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Definition
1. A supervisor, manager or other agent of the employer;
2. Made a sexual proposition;
3. Under threat of adverse employment action, which was carried out; and
4. The adverse employment action resulted from refusing the proposition. |
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Term
| Does a hostile environment claim require the presence of a tangible adverse employment action? |
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Definition
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Term
| What is required of the offending conduct in a hostile environment claim? |
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Definition
| It must be severe or pervasive such that it alters the plaintiff's terms and conditions of employment. |
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Term
| If a plaintiff alleges a hostile work environment that has not resulted in a tangible adverse employment action, what defense may the employer raise? |
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Definition
| That the employer took reasonable measures to prevent and correct harassing behavior and that the plaintiff unreasonably failed to utilize those measures. |
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Term
| What is considered "protected activity" under Title VII, the ADA and the ADEA? |
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Definition
1. Opposing disciminatory practices; or
2. Filing a charge or in any other way participating in an investigation or proceeding under one of the statutes. |
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Term
| Elements of a prima facie case for retaliation. |
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Definition
1. Plaintiff engaged in protected activity.
2. Employer took adverse action against plaintiff.
3. Causal connection between the activity and the adverse action taken. |
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Term
| If an employee establishes a prima facie case of retaliation, what is the next step? |
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Definition
| Burden shifts to the employer to articulate a legitimate non discriminatory reason for the adverse action. |
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Term
| If an employer articulates a legitimate non-discriminatory reason for the adverse action in a retaliation case, what is the next step? |
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Definition
| Burden shifts back to plaintiff to show that the employer's LDNR was not the real reason and that the true reason for the adverse action was retaliation. |
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Term
| Where can employment discrimination complaints be filed? |
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Definition
| EEOC or Pennsylvania Human Relations Commission |
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Term
| How long does a Pennsylvania resident have to file a claim with the EEOC? |
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Definition
| 300 days from the date of the adverse action or the date of the last discriminatory act. |
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Term
| How long does an employee in Pennsylvania have to file a claim with the Pennsylvania Human Relations Commission? |
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Definition
| 180 days from the date of the adverse action or the date of the last discriminatory act. |
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Term
| Is filing a claim with the EEOC or the PHRC a condition precedent to commencing an employment discrimination lawsuit? |
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Definition
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Term
| If the EEOC issues a right to sue letter, how long does the plaintiff have to bring suit in federal court? |
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Definition
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Term
| What remedies are available under Title VII and the ADA? |
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Definition
| Compensatory and punitive damages with a statutory cap and attorneys' fees. No liquidated damages. |
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Term
| What remedies are available under the ADEA? |
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Definition
| Liquidated damages in an amount equal to the plaintiff's lost wages. Can also recover attorneys' fees. |
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Term
| What equitable remedies are available in employment discrimination cases? |
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Definition
1. Instatement
2. Reinstatement
3. Back pay
4. Front pay |
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