Portfolio 40-3rd: Employment Discrimination Law

I. Introduction, Summary of the Statutes, and Orders Prohibiting Discrimination in Employment
A. Civil Rights Act of 1964
B. Equal Pay Act of 1963
C. Civil Rights Act of 1866
D. Section 1983 of the Civil Rights Act of 1871
E. Age Discrimination in Employment Act of 1967
F. Rehabilitation Act of 1973
G. Americans With Disabilities Act of 1990
H. Genetic Information Non-Discrimination Act
I. Vietnam Era Veterans’ Readjustment Assistance Act of 1974
J. Executive Orders 11,246 and 11,375
K. Veterans’ Reemployment Rights Act
L. Immigration Reform and Control Act of 1986
M. State Laws

II. Overview of the Principles of Liability and Elements of Proof: Race as the Paradigm
A. Discrimination Defined
B. Burden of Proof in Individual Cases
1. Burden under a disparate treatment analysis
a. The prima facie case
b. Evidence of pretext
2. Burden in disparate impact cases
C. Burden of Proof in Class Actions
1. Proving a prima facie case
2. Rebutting the prima facie case
D. Summary of the Role of Statistics in EEO Enforcement
E. Identifying Victims of Discrimination as a Condition for Granting Individual Relief
F. Reverse Discrimination

III. Suspect Policies and Procedures
A. Objective Selection Criteria That Have a Disparate Impact on a Protected Group
1. Testing requirements
a. Uniform Guidelines
b. The bottom line approach
c. Test validation
(1). Criterion-related validity
(2). Content-related validity
(3). Construct validity
2. Educational requirements
3. Experience requirements
4. Arrest and conviction records, garnishments, and employment references
5. Nepotism policies and preselection
6. Employee referral policies
B. Subjective Selection Criteria and Procedures
C. Seniority Systems
1. Seniority policies that perpetuate the effects of past discrimination
a. Historical context
b. Resurrection of bona fide seniority system defense
D. Discipline and Discharge

IV. Issues With Respect to Particular Protected Groups
A. Sex Discrimination
1. Bona fide occupational qualifications
a. Physical capabilities
b. Customer and societal preference
2. State protective laws
3. Height and weight requirements
4. Marital status and related issues
5. Pregnancy and related issues
a. Disability benefits
b. Maternity leave
c. Accommodation issues
d. Hiring
e. Discipline/discharge issues
f. Exclusion of women from the workplace due to reproductive hazards
6. Fringe benefits
7. Retirement benefits
8. Grooming standards and dress codes
9. Sexual orientation
10. Equal pay issues
a. Equal work
b. Comparable worth
c. Defenses available in wage discrimination cases
d. Relationship between the EPA and Title VII
11. Sexual harassment
a. Theories of sexual harassment: quid pro quo harassment and hostile sexual environment harassment
b. Gender-based and same sex harassment
c. Employer liability for sexual harassment
B. Discrimination on the Basis of Alienage and National Origin
1. National origin
2. Alienage
C. Discrimination Against Persons With Disabilities
1. Structure and administration of the Rehabilitation Act
2. Structure and administration of the ADA
3. Substantive rights and duties under Title I of the ADA
a. Definition of disability
(1). Physical or mental impairment
(2). Record of impairment
(3). Regarded as having a covered impairment
b. When a person is qualified to seek protection under the ADA
c. Direct threat defense
d. Reasonable accommodation
e. Pre-employment testing and selection criteria, post-employment testing and disability-related inquiries
f. Insurance issues under the ADA
D. Discrimination on the Basis of Religion
1. Statutory coverage
2. Failure to accommodate
a. Prima facie case
(1). Sincere religious belief
(2). Notice to the employer
b. Duty to accommodate
3. Other forms of religious discrimination
E. Age Discrimination
1. Statutory coverage
2. Plaintiff’s burden of proof
3. Defenses
4. Releases

V. Enforcement of Title VII, the ADA, the ADEA, the EPA, and Comparable State Laws
A. Equal Employment Opportunity Commission
1. Jurisdiction and authority
2. The intake procedure
3. Investigation
4. The reasonable cause determination
5. Conciliation
6. Employment in foreign countries
7. Systemic cases
B. State Fair Employment Practices Commissions
C. Private Litigation
1. Right to bring a private lawsuit
2. Title VII class actions
a. Introduction
b. Requirements for certification of a class
(1). Standing
(2). ‘Across-the-board' approach
(3). Requirements of Rule 23(a)
(a). Numerosity
(b). Commonality
(c). Typicality
(d). Adequacy of representation
(4). Rule 23(b)
(5). Bifurcated trials
3. Class actions brought under the EPA and the ADEA
4. Section 1981 actions
D. Right to Jury Trial
E. Remedies
F. Award of Attorneys’ Fees

VI. Affirmative Action Requirements for Federal Contractors
A. Authority for Affirmative Action
1. Introduction
2. Record retention
3. Potential sanctions
4. Coverage of the Executive Order
B. Affirmative Action Program Development and Contents
1. Organizational profile
2. Job-group analysis and placement of incumbents in job groups
3. Determining availability
4. Comparing incumbency to availability
5. Placement goals
6. Designation of responsibility
7. Identification of problem areas
8. Action-oriented programs
9. Internal audit and reporting system
10. Achievement of prior year’s goals
11. Compliance with religious and national origin discrimination guidelines
12. Support of local and national programs designed to improve equal employment opportunity
13. Consideration of minorities and women not currently in the work force
14. Achievement of goals
C. Affirmative Action Obligations of Contractors and Subcontractors With Respect to Disabled and Vietnam Veterans
D. Affirmative Action Obligations of Contractors and Subcontractors With Respect to Disabled Workers
E. Enforcement of Executive Order 11,246
1. Basis for compliance reviews
2. Memorandum of understanding
3. Steps in the compliance review process
F. Enforcement Proceedings