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