Employment Discrimination

ISBN-10: 0735512477

ISBN-13: 9780735512474

Edition: Student Manual, Study Guide, etc. 

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Book details

List price: $22.95
Publisher: Wolters Kluwer Law & Business
Publication date: 4/13/2000
Binding: Paperback
Pages: 450
Size: 8.25" wide x 10.75" long x 0.75" tall
Weight: 2.134
Language: English

Casebook Correlation
Capsule Summary
The Background and Policy Bases for Antidiscrimination Law
Chapter Overview
The Background for Antidiscrimination Law
Antidiscrimination Law as an Exception to the At-Will Rule
The Law and Economics Challenge to Antidiscrimination Law
Law Is Not Necessary to Redress Discrimination
"Rational" Profit Maximization
The Discrimination That Persists Is Rational
Responses to the Libertarian Challenge to Antidiscrimination Law
The Economic Answers
The Non-Economic Costs of Discrimination
Developing a Personal Policy Perspective Concerning Discrimination
Victim Perspective
Perpetrator Perspective
Review Questions and Answers
Individual Disparate Treatment Discrimination
Chapter Overview
Antidiscrimination Statutes
The Basic Provisions of the Antidiscrimination Statutes
Individual Disparate Treatment Is Intentional Discrimination
Stereotyping
There Are Two Recognized Ways to Prove Intent to Discriminate
Circumstantial Evidence or "Pretext" Cases Showing Intent to Discriminate
The Three-Step McDonnell Douglas/Burdine Analysis
Plaintiff's Prima Facie Case
Employer's Rebuttal
Plaintiff's Showing of Pretext
Level of Showing
The Background of the Direct Evidence or Mixed Motive Test of Intent
The Test for a Prima Facie Case
The Same Decision Defense to Liability
The Direct Evidence Approach as an Independent Theory of Proving Intent
Congressional Modification of Price Waterhouse
The Present Approach to Direct Evidence Cases
The Prima Facie Showing of "A Motivating Factor"
The Same Decision Defense to Full Remedies
The Relationship Between the Circumstantial and Direct Evidence Approaches to Individual Disparate Treatment Discrimination
Only One of the Two Approaches Applies to a Case
McDonnell Douglas/Burdine Is the Default Approach
The Existence of "Direct Evidence" Is the Boundary Between Circumstantial and Direct Evidence Cases
The Collapse of the Existing Order and the Emergence of a New Approach
Applying the 1991 Civil Rights Act Provisions to All Individual Disparate Treatment Cases
A Gravitational Move Toward a Unified Approach
The Traditional Approach of General Litigation
Review Questions and Answers
Systemic Disparate Treatment Discrimination
Chapter Overview
Policy or Practice of Intentional Discrimination
Establishing a Prima Facie Case
Formal Policies of Discrimination
The Employer Admits the Policy
The Policy Is Shown by Inference
Patterns and Practices of Discrimination
The Comparison of the Workforce and the Labor Pool
"Gross and Longlasting Disparity" or the "Inexorable Zero"
The Employer's Post-Act Workforce
The Qualified Labor Pool
Anecdotal Evidence Supports the Inference of Discrimination
Using Statistical Evidence to Prove Systemic Disparate Treatment Discrimination
The Employer's Observed Post-Act Workforce
The Qualified Labor Pool
Sources of Qualified Labor Pool Statistics
Sophisticated Statistical Techniques
Defenses to Disparate Treatment Cases
Rebutting the Inference of Discriminatory Intent
Bona Fide Occupational Qualifications
The Qualification Must Be Necessary to the Essence of the Business
Either No Person in Excluded Group Can Do the Job or It Is Impractical to Determine Who Can Do It
The Defense Against Individual's Remedies
Review Questions and Answers
Systemic Disparate Impact Discrimination
Chapter Overview
The Disparate Impact Concept
A Brief Background
Griggs v. Duke Power Co.
Albemarle Paper Co. v. Moody
Wards Cove v. Atonio
The Civil Rights Act of 1991
The Present Statutory Structure of Disparate Impact Discrimination
The Prima Facie Showing of an Employment Practice Causing Impact
A Particular Employment Practice
The Employer's Use of the Practice
Amount of Impact
The Impact Is Adverse
The Impact Is to a Protected Group
Defendant's Rebuttal
The Employer's Use Does Not Cause the Impact
Business Necessity and Job Relatedness
Professionally Developed Tests
Bona Fide Seniority System
Bona Fide Merit and Piecework System
Alternative Employment Practice Surrebuttal
Defining "Alternative Employment Practice"
The Employer's Refusal to Adopt the Alternative
The Alternative Employment Practice as an Independent Cause of Action
The Same Decision Defense to Limit Individual's Remedies
Procedures and Remedies
Disparate Impact in Other Antidiscrimination Statutes
Review Questions and Answers
The Interrelation of the Theories of Discrimination
Chapter Overview
The Differences Between the Three Theories of Discrimination
Systemic Disparate Treatment Discrimination
Systemic Disparate Impact
Individual Disparate Treatment Discrimination
The Relationship Between the Two Systemic Theories
Plaintiffs Prefer Systemic Disparate Treatment
Both Systemic Theories Do Not Always Apply
Where Both Disparate Treatment and Disparate Impact Theories Apply
The Relationship Between the Two Systemic Theories and Individual Disparate Treatment Discrimination
A Successful Systemic Case
An Unsuccessful Systemic Case
Review Questions and Answers
Special Problems of Gender Discrimination
Chapter Overview
The Four Special Gender Discrimination Problems
Pregnancy
The Pregnancy Discrimination Act
The Effect of the PDA on the Main Theories of Discrimination
Sexual Harassment
Harassment Is Either Quid Pro Quo or Hostile Environment Harassment
The Harassment Must Be Because of Sex
Employer Responsibility for Harassment
Grooming and Dress Codes
Sexual Orientation
Review Questions and Answers
Special Problems of Religious Discrimination
Chapter Overview
The Four Special Problems of Religious Discrimination
The Duty to Accommodate Employees' Religious Practices
The Contrast with Disparate Treatment And Disparate Impact
The Structure of a [section]703(j) Case
Title VII's Exemptions for Employers to Discriminate Because of Religion
The Religious Employer Exemption
The Religious Curriculum Exemption
The Bona Fide Occupational Qualification
The Constitutionality of Title VII's Treatment of Religion
Section 703's Duty Not to Discriminate and the Free Exercise Clause
Section 702's Religious Institutions Exemption and the Establishment Clause
Section 701(j)'s Accommodation Duty and the Establishment Clause
Review Questions and Answers
Special Problems of National Origin and Alienage Discrimination
Chapter Overview
The Special Problems of National Origin and Alienage Discrimination
Alienage Discrimination Is Not Prohibited by Title VII
Title VII's Prohibition of National Origin Discrimination Does Not Prohibit Discrimination Based on Alienage
Disparate Treatment and Disparate Impact Theories Do Apply to National Origin Discrimination
42 U.S.C. [section]1981 Prohibits Race, Ancestry, and Ethnic But Not National Origin Discrimination
Section 1981 Prohibits Private Alienage Discrimination
The Immigration Reform and Control Act Prohibits Alienage and National Origin Discrimination
Accent and Language as National Origin Discrimination
Speaking English with an Accent
Requiring the Ability to Speak English
English-Only Rules
Review Questions and Answers
Special Problems of Age Discrimination
Chapter Overview
The Five Special Problems of Age Discrimination
The Protected Class
No Involuntary Retirement Because of Age
Individual Disparate Treatment Discrimination
The ADEA and Disparate Impact Discrimination
Differences in the ADEA and Title VII Statutes
The Split in the Circuits
Fringe Benefit Plans
Benefits Paid or Cost Incurred Must Be Equal
Pension Plans May Use Age to Establish Eligibility
Downsizing, Reductions in Force, and Early Retirement Incentive Plans
Reductions in Force and Individual Disparate Treatment Cases
Early Retirement Plans
Review Questions and Answers
Retaliation
Chapter Overview
The Essence of Retaliation
Statutory Authority
The Structure of a Retaliation Case
Section 704 Protects Applicants, Present and Former Employees
The Plaintiff Must Show She Engaged in Either Free Access or Opposition Conduct
The Plaintiff Must Show that the Employer Took Adverse Action Against Her Because of Her Protected Conduct
Review Questions and Answers
Reconstruction Civil Rights Acts
Chapter Overview
The Reconstruction Era Civil Rights Statutes
42 U.S.C. [section]1981
42 U.S.C. [section]1983
42 U.S.C. [section]1985(c)
The Relationship of the Reconstruction Statutes and Title VII
Reconstruction Era Statutes May Reach Conduct Exempted from Title VII
No Administrative Agency Filing Required
Statutes of Limitation
Remedies
The Scope of 1981 Protection
"Race" for [section]1981 Means "Ancestry" or "Ethnic" Background
Section 1981 Prohibits Alienage Discrimination
Sex Discrimination Does Not Violate [section]1981
Section 1981 Reaches Private and Public Employers
Section 1981 Prohibits Race Discrimination for the Duration of the Contract Relationship
Only Intentional Discrimination Is Prohibited by [section]1981
42 U.S.C. [section]1983
Scope of [section]1983 Actions
The State Actor as Defendant
42 U.S.C. [section]1985(c)
Review Questions and Answers
Disability Discrimination
Chapter Overview
The Broad Scope of the Americans with Disabilities Act
Individual Disparate Treatment Case of Disability Discrimination
Exceptions to the Definitions of Disability
Plaintiff's Prima Facie Case
Defenses to Disability Discrimination Claims
The Other Theories of Discrimination
Systemic Disparate Treatment Discrimination
Systemic Disparate Impact Discrimination
Failure to Reasonably Accommodate a Known Disability
Testing that Causes Impact
Protected Relationship
Special Disability Discrimination Problems
Alcoholism and Illegal Drug Use
Sexuality Issues
Gambling, Kleptomania, and Pyromania
Medical Examinations
Review Questions and Answers
Equal Pay for Equal Work
Chapter Overview
Gender Discrimination in Compensation
The Equal Pay Act
Plaintiff's Prima Facie Case
Defenses to the Prima Facie Case
Using Title VII to Attack Gender-Based Wage Discrimination
The Bennett Amendment Harmonizes the EPA and Title VII
Title VII Theories of Discrimination in Gender Compensation Cases
Review Questions and Answers
Coverage of the Antidiscrimination Statutes
Chapter Overview
Coverage Issues Are Important to Scope of Application
Title VII of the Civil Rights Act of 1964
An Employer Under Title VII
An "Employee" Under Title VII
Age Discrimination in Employment Act of 1967
An "Employer" Under the Act
Reconstruction Civil Rights Statutes
42 U.S.C. [section]1981
42 U.S.C. [section]1983
Americans with Disabilities Act
A "Covered Entity" Under the Act
Other "Covered Entit[ies]"
The Equal Pay Act
An "Employer" Under the EPA
Review Questions and Answers
Procedures for Enforcing Antidiscrimination Laws
Chapter Overview
The Scope of Antidiscrimination Procedures
Modern Antidiscrimination Procedure
Reconstruction Era Civil Rights Statutes
Private Enforcement of Title VII
Filing a Timely Charge
Timely Filing Suit
Relationship of the EEOC Charge to Private Suit
Private Class Actions
Requirements of Rule 23(a)
Requirements of Rule 23(b)
The Preclusive Effect of a Class Action
Settling Class Actions
Public Government Enforcement
Sufficiency and Scope of the Investigation
Statute of Limitations
EEOC's Duty to Attempt Conciliation
Title VII Suit Against Governmental Employers
State and Local Government Employment
Federal Employment
The Relationship Between Public and Private Suit
The Public Suit
The Private Suit
Settling and Arbitrating Discrimination Suits
Knowing Waiver of Discrimination Claims
Settlement by Agreement or by Consent Order
Arbitration
Review Questions and Answers
Judicial Relief
Chapter Overview
The Scope of Judicial Relief
Full Relief for Individual Victims of Discrimination
Section 706(g)(2)(B) Exception to Full Relief
Types of Remedies in Individual Cases
Backpay
Instatement, Reinstatement, Retroactive Seniority, and Prohibitory Injunction
Front pay
Compensatory and Punitive Damages
Liquidated Damages
Lost Wages Under the Equal Pay Act
Attorney's Fees
Relief for Systemic Discrimination
Retroactive Seniority and Backpay
Affirmative Action Relief
Review Questions and Answers
Sample Exam Questions and Sample Answers
Glossary
Table of Cases
Table of Statutes
Table of Federal Rules
Index
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