 You're watching FJTN, the Federal Judicial Television Network. Hello, I'm Paul Vambus with the Federal Judicial Center. Along with members of the American Bar Association's section on labor and employment law, we're going to be talking about the basics of employment discrimination law as it is practiced in the federal courts. Labor and employment law is one of the fastest growing segments of the Federal District Court docket, with equal employment opportunity cases accounting for about 8% of all civil filings in the year 2001. And federal question EEO cases made up more than 12% of all federal question civil cases. Only prisoner petitions represent a larger proportion of civil or federal question filings. In the appellate courts, the impact is even greater. There, EEO cases comprise more than 21% of all civil federal question cases decided after oral argument in the year 2001. And one last statistic. In 1990, more than 8,000 discrimination cases were filed in federal courts. Ten years later, in 2000, more than 21,000 cases were filed, an increase of almost 250%. To help us explore and explain this increasingly important area of the law, we have gathered five of its outstanding practitioners. They are Janna Howard-Carrie, a Venable-Bachard and Howard in Baltimore, Maryland. She represents employers and is the chair of the ABA section of labor and employment law. Wendy L. Kahn of Zwerdling, Paul, Liebig, Kahn and Wolley in Washington, D.C. She represents labor organizations. Mark Dichter of Morgan, Lewis and Bakias in Philadelphia, Pennsylvania, who represents employers. Richard Seymour of Leif, Cabraiser, Hyman and Bernstein in Washington, D.C., who represents employees and civil rights organizations. And Peter Zinniber of Zinniber and McCray of Tampa, Florida. Peter represents employers. Labor and employment law is a vast area covering several federal statutes, important U.S. Supreme Court decisions and many substantive and procedural issues. In order to get a handle on it, we're going to break it down into two parts. In part one, we'll take a broad overview of the field covering several of the major statutes and pay special attention to the issues of sexual harassment and discrimination against the disabled. Two of the fastest growing areas of litigation in the field. We are also going to look at some theories of discrimination and the burdens of proof and production they require. And in part two, we're going to move into the procedural questions with a look at discovery and evidentiary issues, as well as remedies available under federal employment discrimination laws. Let's start with our overview. One of the first and most important laws in this area is Title VII of the Civil Rights Act of 1964. It's important to remember that this act was amended in 1972, 78 and 91. So when doing research in this area, remember to look at the 91 amendments. Cases decided prior to 1991 may not be good law anymore. One of the striking things about Title VII is how broad its coverage is. Title VII regulates pretty much everything that applies to the employment process. It covers private and public employers, federal, state and local. It covers labor unions. It covers employment agencies. It covers joint employer union operations. It covers hiring halls. If it affects the employment process, Title VII pretty much covers it. And at least as important as who Title VII covers is what it prohibits them from doing. Title VII forbids discrimination based upon race, color, national origin, gender and religion. Let's take a closer look at some of those prohibited areas, starting with national origin. National origin discrimination really means discriminating against somebody because of their country of origin or the country of origin of their ancestors. The Equal Employment Opportunity Commission, or EEOC, has promulgated some guidelines about how it interprets the protections it administers in this area. For example, national origin protection extends to people who are discriminated against because of their marriage to or association with people of a national origin group, even if they are not members of the group. It extends to people who have a membership in or association with an organization that is identified with or promotes the interests of a national origin group. It extends to people who are discriminated against because of their attendance or participation in schools or churches that are generally used by persons of a particular national origin group. And it extends to individuals whose names or spouse's names are associated with a national origin group even if they don't belong to the group. But how is national origin defined? Obviously someone from a recognized nation qualifies, but so does someone with a distinct cultural or ethnic identity, even if there is no country like Cajuns or Gypsies. And discrimination among people of different national origins, such as preferring a Cuban to a Salvadoran, is also prohibited under Title VII. The Supreme Court addressed the question of whether national origin also prohibits discrimination on the basis of citizenship in a 1973 decision. It was the Espinoza versus Farrah Manufacturing case, and it concluded that Title VII does not prohibit discrimination on the basis of citizenship unless the national origin discrimination really has the purpose or effect, excuse me, the citizenship discrimination has the purpose or effect of national origin discrimination. The promulgation and enforcement of English-only rules has been one ongoing source of litigation under this part of Title VII. Employers who are charged with discriminating on the basis of national origin because of a requirement that employees speak only English on the job can, however, exercise a bona fide occupational qualification, or BFOQ defense, claiming that speaking English is required by a legitimate business purpose. But the EEOC has taken the position that if employers have an English-only rule that is enforced at all times, rather than just at certain times when legitimate business needs require it, that may constitute discrimination on the basis of national origin. Employees also have to be on notice of the existence of such a rule and the consequences of violating it. Another important basis for prohibiting discrimination in Title VII is sex. For example, failure to promote someone because she's a woman would be a clear violation of Title VII. But it is also important to understand what this law does not prohibit. Sexual activity or orientation are not covered, nor is discrimination on the basis of marital status. But Title VII does prohibit discrimination based on pregnancy, childbirth, or related medical conditions, although that wasn't always the case. The Supreme Court, basically, in one of its earlier decisions held that sex discrimination did not encompass discrimination on the basis of pregnancy. But Congress effectively overturned that with the Pregnancy Discrimination Act and since then discrimination on the basis of sex has been held to include discrimination on the basis of pregnancy. It should also be remembered that some states have passed laws granting greater protections to pregnant women than those granted in the PDA. In fact, the U.S. Supreme Court held in California federal savings and loan Vigara that the Pregnancy Discrimination Act did not preempt a state statute that required employers to provide paid leave to employees who were disabled by pregnancy, childbirth, or related conditions. The Court said the PDA is a floor beneath which pregnancy benefits may not drop, not a ceiling above which they may not rise. Most issues under the PDA revolve around whether a particular condition, like abortion or infertility, is related to pregnancy or childbirth and thus protected. Whether a particular action taken by an employer was on the basis of pregnancy or childbirth, or whether a alleged employee misconduct was caused by or related to pregnancy and thus protected by the PDA. Another basis for prohibiting discrimination that we want to focus on more closely is religion. What constitutes religious discrimination under the statute and what religions does it cover? It includes agnostics, it includes atheists, it includes people who have a belief that is not even adopted by the religion that they are sort of, at least in name, a part of. The basic rule is that it has to be a religious type belief and it has to be held with the kind of strength and conviction that religious beliefs are normally held. The discrimination in that area it covers discriminating against somebody because they engage in religious observances. For example, the clothing they wear may be something that's dictated by their religion or that they believe and should be worn with the conviction and fervor that many people hold with respect to religious beliefs. It can include things like an individual who refuses to allow any invasion of their body because that's such as a TB test because they consider that to be contrary to their religious beliefs. And it, of course, includes discriminating against someone because they want to observe their Sabbath whenever that is, which may not be the typical Sunday Sabbath. One interesting thing about the prohibition against discrimination based on religion is that it is the only basis for discrimination in Title VII where employers not only have to refrain from discriminating but are also required to accommodate their employees, in this case as to their religious beliefs and observances. This, however, is not as broad as it first sounds. The Supreme Court ruled in TWAV Hardison that employers are not required to bear more than a de minimis cost to accommodate an employee's religious beliefs. The court also said in Hardison that employers are not required to make exceptions to their seniority systems if doing so would violate a collectively bargain system in order to give employees a schedule that accommodates their religious beliefs. Finally, religion is also different in that Title VII recognizes that employers which qualify as religious organizations may engage in certain otherwise prohibited discrimination practices which favor members of their own religion and which discriminate against persons not holding such membership or views or not following the religious teachings of the employer but only when the employee's conduct is inconsistent with the employer's religious precepts. So, for example, in one case a sectarian academy was allowed to terminate an unmarried employee who became pregnant because premarital sex violated the school's religiously-based code of conduct. But in another case, with almost identical facts the result was the opposite because there was some question as to whether termination was because of the premarital sex or the pregnancy which was specifically protected under Title VII. What that shows is that the exemption does not apply to non-religious characteristics protected under Title VII such as sex, race, or national origin. Finally, the BFOQ defense is allowed in religious discrimination cases where belonging to a specific religion or a religious institution is considered a necessary qualification of working there. As we said when we began the scope of Title VII is very broad and it comes to the grounds for discrimination but it is also very broad concerning the kinds of behavior that are regulated. Employers are prohibited from discriminating in hiring and discharge with respect to compensation, terms, conditions, privileges of employment, promotions, tests, and other selection criteria. Employee benefits, training, and work assignments. Employment agencies are also prohibited from failing or refusing to refer someone for employment based on a protected characteristic or, for that matter, referring somebody for employment based solely on one of the characteristics. Labor organizations are covered both as representatives of employees and, if they're large enough, as employers but solely as labor organizations are prohibited from excluding or expelling anyone from membership, failing or refusing to refer someone to a job, causing or attempting to cause an employer to discriminate or failing to fairly represent a bargaining unit employee where any of these actions was based on an employee's protected status. People running job skills training programs including apprenticeship programs, retraining, and on-the-job training are prohibited from discriminating in admission to or participation in such training programs. All persons and entities covered by the statute are prohibited from limiting, segregating, or classifying employees or applicants in any way that would deprive them or tend to deprive them of employment opportunities or otherwise adversely affect their status as an employee. And they are prohibited from retaliating against employees who exercise their rights. There's sort of two types of retaliation that are prohibited under Title VII. One is the opposition clause, which prohibits an employer from retaliating and gets someone who has opposed a practice that the person believes is discriminatory. So if they are complaining about something being discriminatory or something along that line, that's a violation of the opposition clause of Title VII. Then there is what is known as the participation clause, which prohibits an employer from or an entity from retaliating against someone who has filed a charge with an EEO charge, who has participated in an investigation, who has participated as a witness for someone else in a Title VII or an EEO investigation, participated in a hearing, participated in discovery, and all kinds of activities. And that's a separate clause of Title VII, the prohibits retaliation. Before we turn to theories of discrimination and their burdens of proof and production, we need to look more closely at two areas of labor and employment law that account for a good deal of litigation in the field. These are sexual harassment and discrimination against the disabled. First, let's look at the two kinds of sexual harassment. One is known sometimes as quid pro quo harassment in which an action is taken that such as someone is not promoted because the person wouldn't go to bed with a boss. That's a fairly blatant kind of quid pro quo harassment. So when an action directly occurs as a result of someone being subjected to harassing behavior and unwanted behavior, the other type of sexual harassment is hostile environment, sexual harassment, which is a more general kind of set of circumstances that constitute sexual harassment. The hostile environment sexual harassment is typically harassment that does not involve a tangible job detriment, but instead creates an environment that is unpleasant and unacceptable based upon the considerations of sex. It can run from language, from jokes, from discourse at a water cooler or a lunch, to unwanted touchings on different parts of the body, but typically parts of the body that are associated with sexual activity or with sexual allure. While those remain the two basic types of sexual harassment under the law, the distinction between them, as far as assessing liability against employers, was obliterated by two U.S. Supreme Court decisions handed down in 1998. Farragher and Ellarth dramatically changed the ground rules for assessing liability in sexual harassment cases. In these cases, the court ruled that in any situation where sexual harassment by a supervisor with immediate or successively higher authority results in a tangible detrimental employment action, such as discharge or demotion or an undesirable assignment, the employer is strictly liable for that action, even if the employer and his management had no knowledge that harassment was taking place. If, however, no tangible detrimental employment action results from the sexual harassment, Farragher and Ellarth provide employers with a two-prong affirmative defense. First, the employer has to show that it exercised reasonable care to prevent and to promptly correct sexually harassing behavior. This usually means it had an effective anti-sex harassment policy that it made well-known to employees and that it effectively implemented that policy in response to the reported harassment. The second prong requires the employer to establish that not only did it have an effective policy for preventing or dealing with sexual harassment, that was well-publicized to employees, but that the plaintiff unreasonably failed to take advantage of that policy. And while that sounds fairly straightforward, there are, of course, a number of questions raised by it in litigation, including what is a tangible job detriment and who is a supervisor? The term tangible job detriment was not defined strictly by the Supreme Court, but in citing cases that dealt with this issue, they made it pretty clear that they were looking at something fairly substantial, something that would affect a pay, for example, a demotion, including a loss in pay, discharge, obviously, perhaps a failure to promote if the person was otherwise entitled to that promotion. But it would have to be a substantial job action. In general, the court seemed to be taking the tack that someone needs to have the authority that would qualify them as a supervisor under the National Labor Relations Act, which is also itself a heavily litigated definition that one has the authority to hire, fire, discipline, promote, change terms and conditions of employment, or effectively recommend those kinds of actions. There are also various other elements to a claim of sexual harassment. For example, although it may sound obvious, the plaintiff has to prove the harassment was based on sex. And a number of issues have arisen on that question. For example, in the Supreme Court's 1998 on-cow decision, the question was whether or not Title VII prohibits sexual harassment, where the harasser and the victim are the same sex. The court answered yes to that question. The court said the purpose of Title VII was to protect both men and women from discrimination and harassment in the workplace, and the sex of the harasser should not be a determining factor. Another issue is the equal opportunity harasser, who sexually harasses both men and women. If the defendant can successfully argue that the harassment was not because of the sex of the target, the courts have said this kind of harassment is not actionable under Title VII. In hostile work environment harassment cases, the basic question is whether the harassment was sufficiently severe and pervasive to create an environment that a reasonable person would find hostile and abusive. The Supreme Court in Harris v. Forklift Systems detailed the factors the courts look at in assessing this. Basically, the court said one has to look at the frequency and severity of the conduct, whether it was physically threatening or humiliating, as opposed to a mere offensive utterance, and whether it unreasonably interfered with an employee's work performance. Two final points that need mentioning, harassment by co-workers is prohibited, as well as harassment by supervisors. In cases involving co-workers, the courts generally apply a negligence standard, and harassment by third parties, like customers or patients in a hospital, may be illegal as well. The final area we want to highlight before moving on to theories of discrimination is discrimination against the disabled. The definition of disabled is provided in the 1990 Americans with Disabilities Act, the major statute in this area. If the individual has a disability that significantly affects a major life activity, that is a disability. If the individual has a record of such a disability, then that qualifies for coverage under the statute. Or if the individual is regarded as having such a disability, then that qualifies under the statute. The impairment can be physical or mental, but the statute does not cover some things. Illegal drug use is not covered, and there are statutory exclusions, such as bisexuality and transvestism. Those are listed in Title VII of the statute. The EEOC has said physical characteristics, personality traits, and cultural differences are not disabilities. Also, pregnancy is not a disability, nor is simple predisposition to sickness or illness. To qualify as a person with a disability under the ADA, a plaintiff must prove that it substantially limits them in a major life activity. The U.S. Supreme Court handed down a major decision on this question, this last term, in Toyota View Williams. The court held that to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives. And the impact of the impairment is required to be permanent or long-term. The court found against Williams, ruling in essence that while her carpal tunnel syndrome impairment prevented her from doing her job at the Toyota plant, the changes in her life did not amount to such severe restrictions in the activities that are of central importance to most people's daily lives that they establish a manual task disability as a matter of law. The court ruled in 1999 in the Sutton case that judging whether a person is disabled within the meaning of the ADA also requires taking into account available, effective mitigating measures. The Sutton sisters were rejected for pilot's jobs by United Airlines because they were severely myopic. With corrective lenses, their vision was 2020. The court ruled that if an impairment is correctable, it does not substantially limit a major life activity so that the Sutton sisters did not qualify as disabled under the ADA. If a person is disabled under the act and is qualified to do the work in question with an accommodation, the act requires that the employer make a reasonable accommodation for the disability that does not cause an undue burden on the employer. Examples of reasonable accommodations listed in the act include making existing facilities readily accessible and usable and taking actions such as job restructuring, part-time or modified work schedules, reassignment to a vacant position, or provision of qualified readers or interpreters. That's our quick review of many of the substantive employment discrimination issues you'll see as federal law clerks. Before we move on to procedural and evidentiary issues, let's take a look at some of the theories of discrimination that apply to many of the statutory protections. Dispared treatment is what we ordinarily think of by way of discrimination. It's just intentional discrimination. And the intent may be specific. I don't like that person because the person is black. It may be based upon a stereotype that the decision-maker in question is not even consciously adverting to. I just don't think blacks are as capable as whites or that women are as capable as men, and therefore I tend to favor whites. I tend to favor men in my selection decisions. That's disparate treatment. It can be proven in a number of ways. It can be proven by direct evidence, i.e. the supervisor saying, I don't want your kind around here, and that still does happen, although it happens very seldom. It tends to happen more often with gender discrimination than it does with racial discrimination. It can involve the drawing of an inference from something that looks very odd, circumstantial evidence. In disparate treatment cases, the burden of proof is on the plaintiff. How the burden is met will be discussed later. A variation on the disparate treatment theory of discrimination is the mixed motive analysis, in which discrimination was one factor in the decision, but not the only factor. A combination of Supreme Court decisions and statutory amendments now make it necessary for the plaintiff only to demonstrate that race, color, religion, sex, national origin, age, or disability was a motivating factor in the decision made by the employer. In a mixed motive analysis, the employer bears the burden of persuasion. A pattern in practice case is a type of disparate treatment case in which the plaintiff alleges the defendant engaged in the disparate treatment in an ongoing basis towards all members of a protected class. Statistics are often presented as evidence in these cases. Our final theory of discrimination is adverse impact, in which the plaintiff alleges that a facially neutral employment practice falls more harshly on one group than another and cannot be justified by business necessity. That concludes the first part of our program. We're going to take a five minute break and come back to discuss procedural and evidentiary issues. Welcome back to the procedural portion of our discussion. The same federal statutes that provide citizens with rights in the employment arena also require them to comply with certain procedures to enjoy those rights. Many of these procedures involve the Equal Employment Opportunity Commission, or EEOC. Well, first, the plaintiff cannot be in court unless the plaintiff is exhausted before the EEOC with respect to claims that are Title VII, the Age Discrimination and Employment Act, Americans with Disabilities Act, and the like. The plaintiff has to put down in the charge before the EEOC what is the practice that is alleged to be unlawful insofar as the plaintiff knows it, has to put down the basis of the discrimination that is claimed, is it age, is it race, is it retaliation, is it gender, and so forth. A plaintiff must file that charge within 180 or 300 days of the alleged discrimination occurring. The difference depends on whether the plaintiff has also filed the charge in a deferral jurisdiction. A deferral state or a deferral jurisdiction is one in which there is a Fair Employment Practices Agency and a Fair Employment Practices Statute, such as the Florida Civil Rights Act, for instance, which creates the right on the part of individuals to obtain substantially similar relief for substantially similar injustices. Where those kinds of statutes or ordinances exist, the limitations period is extended from 180 days to 300 days. In Edelman v. Lynchburg College, the Supreme Court decided that the filing of a verified or sworn charge after the limitations period relates back to a timely filed, unverified charge, making the earlier charge timely. Even before the EEOC investigation is complete, the agency offers the party's assistance in mediating the dispute in most cases. This only occurs if both parties agree to it. During the investigation, the EEOC may ask the employer to provide information, ask the charging party for more information, and it may interview witnesses. The agency can also subpoena documents and enforce its subpoenas in federal court. The EEOC administrator process ends if the agency decides against a reasonable cause determination. A reasonable cause determination does not mean the agency finds that discrimination occurred, only that upon investigation, it finds a reasonable cause to believe that the allegations of the charge are true. If it reaches such a conclusion, it asks the parties to conciliate their differences. If that fails, the EEOC can then bring suit to obtain relief based on allegations in the charge. It can also issue a notice of right to sue based upon the failure of conciliation, similar to the notice of right to sue issued after EEOC finds no reasonable cause to believe the allegations in the charge are true. In either event, to be timely, a potential plaintiff must file a Title VII ADEA, or ADA lawsuit, within 90 days after the charging party receives this notice. The EEOC and all other federal agencies combined file only between four and five hundred discrimination suits in federal court per year. That means more than 20,000 suits are filed by private parties. In another important case in its 2001 term, EEOC v. Waffle House, the U.S. Supreme Court decided that in cases where an individual is precluded from suing his employer for discrimination because he signed an agreement to arbitrate all such disputes, the EEOC can still sue the employer on its own authority and seek full legal and equitable relief on his behalf. Regardless of whether one files with the EEOC or a deferral agency, there is another doctrine that must be satisfied. That is the doctrine of exhaustion, and it applies to Title VII, ADA, and ADA charges of discrimination. There is no exhaustion requirement for discrimination cases brought under sections 1981 and 1983. The doctrine of exhaustion requires that the basis for the discrimination claim has to be stated completely in the charge. If one is claiming only age discrimination, one is not going to be allowed to sue about racial discrimination. There are few exceptions to this rule. One is, if the party shows it could not have known discrimination that motivated the employment decision. For example, if the discrimination occurred because of gender, and the charging party thought it was national origin. The other exception that is generally allowed by courts is post-charge retaliation. The list of defendants does not have to be exhausted in the charge. Whether they can be added later depends on whether they had noticed, whether they could reasonably anticipate that the charge would be brought against them, whether they had engaged in actions that led to confusion as to who was responsible and the like. Finally, there are two other doctrines that affect a plaintiff's rights in filing a charge with the EOC. The single filing doctrine and the continuing violation doctrine. In cases in which class actions are sought, and the representative plaintiff is seeking to add individuals into the case whose claims are barred by the statute of limitations or time barred. The single filing rule says that if the individual who is, who never filed a charge, never filed a, a, never exhausted administrative remedies, which is a prerequisite to get into court under any of these statutes, if that individual suffered the same kind of discrimination as the named plaintiff or plaintiffs, and if that discrimination was suffered within the statute of limitations so that that individual could have brought the lawsuit on a timely basis or could have filed a charge at the same time as the charging party did, the plaintiff did, then that individual can be brought into the lawsuit on a piggyback or single filing basis. And the importance of the continuing violation doctrine is that it reaches back beyond the 180 or 300 day limitation and allows a plaintiff whose claim is time barred to reach back into a, a period of time that would ordinarily not be actionable and to bring those issues forward and to take the position that they are also able to form the basis for relief. In the Morgan case last term, the Supreme Court held that a Title VII plaintiff raising claims of discreet discriminatory or retaliatory acts, such as involving promotions, must file his charge within the appropriate 180 to 300 day period. But a charge alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within this filing period. The clock starts running on these actions when the person is notified that there's going to be an adverse employment action. The person cannot wait for the action to take place. Even if the person grieves the action in a collective bargaining situation, the time is not told. The clock is still running. But if the action is not final and is still being processed by the organization, then the time does not necessarily start to run. One case you may want to look at if you're asked to research the single filing or piggyback doctrine is an 11th circuit case from 2001 called HIP, the Liberty National Insurance Company. It's worth remembering that there are some important differences between dealing with these issues in the private and public sectors. The first most important difference with respect to relief is that there are no punitive damages available under federal law against any government agency. So that's completely off the boards. Second is, if you're dealing with a state or local government agency and the case is brought under Title VII, the Supreme Court has held that the 11th Amendment does not bar the case and the courts of appeals have held that that does not bar even a claim for compensatory damages against the state agency. If it's a case under the Americans with Disabilities Act or the Age Discrimination and Employment Act, the Supreme Court has held that the 11th Amendment does bar the private individual from suing the state agency for monetary relief. They can still sue for injunctive relief and the government may still sue for monetary and injunctive relief, but the individual cannot sue for monetary relief. With respect to cases against the federal government, there's a completely different administrative process. There's a 45-day time period for filing the initial charge of discrimination. There's a much more involved proceeding and at the end of the proceeding, there is an adjudicative hearing, the results of which can bind the agency but not bind the individual. The individual can go to court and have a de novo determination whether there was discrimination. If the adjudicative process found that there was discrimination but gives inadequate relief in the eye of the plaintiff, the plaintiff can go to court, obtain partial summary judgment on liability based upon the administrative decision that the individual believes he or she is entitled to. There's also a greater requirement of exhaustion in the federal sector, partly because of the fact that this is a waiver of sovereign immunity and such waivers are supposed to be strictly construed. For example, the Supreme Court has held that an individual must exhaust as to a claim for compensatory damage as it has to be specifically stated in the charge of discrimination or else that is waived and there's no such requirement that all the remedies that are available in the private sector are also available against federal, state and local agencies. Just as there are unique procedures in the practice of labor and employment law, there are some discovery issues that may be slightly different from the more general discovery rules. First, it's important to remember that there was a significant change in the rules affecting discovery that went into effect on December 1st, 2000. Just as you have to be careful to look at the 1991 Amendments to the Civil Rights Act, you want to be aware of the discovery changes of 2000. Also, it is worth remembering that plaintiffs and defendants will view discovery differently. The scope of the case and the type of issue really determined the nature of the discovery. Hypothetically, let's suppose we're dealing with a promotion case and the individual is told that he received the promotion because of some qualification that was missing or because someone else was better qualified. It would certainly be reasonable in that kind of case to find out whether the same standards have been applied to others. Well, when you're talking about employment record type of evidence, the burden is almost all on the employer. The employee says, I applied for a job and wasn't hired, and you can ask the employee about their background, but there's not a whole lot more that you get from discovery. If you're dealing with respect to a promotion claim or pay claim, you'll get into the details of that employee's employment history, but typically employee doesn't have extensive records and you're really talking about a deposition and fairly limited records, whereas the employers can have extensive records and they can reside in various departments in various places, so the burden in that kind of case is much more heavily on the employer's side. How far back should discovery go? Two years, five years, ten years? There is no bright line rule to answer this question, but generally courts allow plaintiffs to discover back as far as five years. Absent some basis for going back much further. Statistical evidence often plays a major role in employment discrimination cases, and much of that is in electronic form. So there are issues of cost and the burden of assembling and producing evidence in electronic form. Statistical evidence is critical in pattern and practice and adverse impact suits. There, you're trying to show a long-term discriminatory effect of a facially neutral policy that has a disproportionate negative effect on a group of individuals protected by Title VII. Evidence of motive is important in these cases. What motivated the employer's decision? Was it based on gender, national origin, race? With respect to sexual harassment, both sides may need to gather evidence of how responsive the employer was to complaints of harassment by the plaintiff and other employees. In sexual harassment cases, discovery from the plaintiff is usually sought to ascertain the basis of his or her allegations. Frequently, there is a need to balance the right to discover potentially relevant evidence with the privacy interests of parties and witnesses. When you have issues of sexual harassment, you may have questions of prior conduct, related conduct, conduct involving other individuals. You may have allegations of a consensual relationship or the issue of whether or not it was consensual. Rule 412, dealing with evidence of sexual misconduct, bars evidence which is offered to prove the alleged victim engaged in other sexual behavior or to prove the alleged victim's sexual predisposition. The exception to the rule in civil litigation is that such evidence is admissible if its probative value substantially outweighs the danger of unfair prejudice to the plaintiff. The plaintiff's reputation is only admissible if she herself places it in controversy. There can also be information the defendant employer is concerned about that may affect competitiveness, even if it doesn't rise to the level of trade secrets. Benefit plans, employee compensation and future business plans may be included in this category of information. Finally, there may be personal information about other employees who are not plaintiffs, such as their compensation or job history. All these kinds of information are often dealt with through the court issuing protective orders that limit the use and disclosure of the information assuming it is otherwise discoverable. What evidence is necessary to grant summary judgment is an important issue for employment law cases. And the standard used to decide whether to grant it was developed by the U.S. Supreme Court in a 1973 decision, McDonnell Douglas v. Green. So you're in a protected group. There's been an adverse employment action. You weren't hired, you weren't promoted, you were fired. It occurred under circumstances giving rise to an inference of discrimination. So typically, and when this standard was developed, you had an African-American applying for a job in which there were very few African-Americans. The person is turned down. The job is still open, so it's not a question of the job having been filled. And that will create a prima facie case with nothing more than that. That shifts the burden to the employer. A burden of going forward, not a burden of proof, a burden of articulating and again not proving, but articulating a legitimate non-discriminatory reason for not hiring a person. I found someone better qualified. The person who was in charge of the applications, those would be typical reasons. The plaintiff then has the opportunity to show that that reason that was articulated is really pretext and that the real reason is discrimination. The question then is a reason, if the plaintiff can only show that the reason was pretext, that wasn't the real reason, is that enough to shift it back and in effect establish the discrimination with the real reason? In 2000-2001 term, Reeves v. Sanderson plumbing. In Reeves, the court held that a jury is permitted to infer discrimination if it determines that the supposedly non-discriminatory reason articulated by the defendant employer was in fact pretextual. The court articulated three factors in Reeves for determining whether or not there is enough evidence for the case to go to the jury. First, was it a mere bare bones prima facie case or was it stronger than that? Second, what is the probative value of the proof that the explanation was false? Was there someone clearly and unequivocally lying suggesting that there was a cover up or was it something less than that? Finally, what other evidence is there to support the employer's case that its reason for making the decision in question was not discriminatory? And it's important in this context to distinguish between a false reason and an erroneous one. Some employers have a hard time telling an employee he or she is a poor performer and mask the decision to fire him or her as part of a reorganization. When it comes to light that the reason which was given was not the real reason, it doesn't necessarily mean the real reason was discriminatory. A caution about precedent in this area. Before the 1991 amendments to the Civil Rights Act and in particular to Title 7. Title 7 cases were tried by a judge, not a jury. So, cases decided before then and for some years afterward. They no longer be good precedent on questions of admissibility or weight of the evidence. The most common type of evidence in employment cases is comparative evidence. For example, was an employee treated differently than others because of his or her race or gender or age or some other protected status. The questions that arise are were the individuals similarly situated? Were the same standards involved? Was the same conduct involved? Were there differentiating or mitigating circumstances that would show the employees were really not similarly situated? All those facts go to the weight or possibly the admissibility of evidence. One of the challenging questions in this area deals with what is sometimes called me too evidence. For example, an employee charges he was terminated because of age and says he knows five other employees who were terminated because of age as well. Should he be allowed to offer evidence of those other five cases? On the one hand it might be evidence of a pattern of force the employer to litigate those other five cases and have to establish good faith in all of them in order to litigate the principal in this case. Are they relevant? Often comparative evidence is statistical and this raises an entirely different set of issues. Just to mention a few. What is the appropriate pool with which to compare the employee who is the subject of the case? The workforce in general? The subset of the workforce who possess certain skills? What is the appropriate comparison on the other side? Is it the employer's present workforce? Is it decisions made within a certain period of time? What is the relevant time period for the comparison? What degree of statistical disparity is enough to infer discrimination? The Supreme Court and other courts have adopted a basic test that is more than two or three standard deviations from what would be expected to be the case. That is enough to infer that something did not occur by chance. It may not be enough to infer the discrimination. A standard deviation, by the way, is a statistical test for measuring whether something occurred by chance or not. And the size of the statistical sample can affect the validity of the results. How many instances of the alleged discriminatory action took place? Finally, evidence of biased remarks should be considered. The issue is who made the remark? Was it the decision maker in the case in question? Was the remark really evidence of bias or was it a more generally accepted comment? How close in time was that remark made to the decision in question? Was it something someone made in a speech five years ago that we need to find new blood and thinking about a termination decision five years later? Did it relate to the plaintiff in question? The purpose of every civil lawsuit is to obtain relief of some kind. Before we go, we will discuss some of the forms of relief available to plaintiffs in employment law cases. First, there are two kinds of injunctive relief. The first is individualized relief that restores an individual to the position he or she would have been in absent the discrimination. That can include reinstatement, hiring, promotion or a variety of other actions. There is also general injunctive relief. This is most common in class actions or government pattern in practice cases. And among the most common forms of equitable or make whole relief awarded is back pay and lost benefits. Where there is a large-scale case and it is not possible to determine which plaintiff would have received the promotion in the absence of discrimination, it is possible to share the back pay on a class-wide pro-rata basis. Relief can include changes in policies and practices. Goals and timetables requiring gender or race-conscious relief with respect to hiring and promotions may be established. Pre-judgment interest is customarily awarded. Front pay compensates the plaintiff for one of two different situations. Since it is generally accepted that injunctive relief does not include displacing even the person who benefited from the discrimination, the plaintiff may have to wait until a vacancy opens up to get a job he or she would have had if not for the discrimination. Front pay compensates for the difference between the plaintiff's present position and the one they are waiting to open up. There can also be front pay when the plaintiff has been discharged or is no longer able to work with the employer until the plaintiff finds comparable employment. Customarily front pay awards will run one to two years. There is a duty to mitigate the damage, but not to take a demeaning job to do so. Liquidated damages in an amount equal to the payback award are available under the Equal Pay Act, the Age Discrimination and Employment Act and the Family and Medical Leave Act. These damages are available under the FMLA and EPA unless the employer proves it acted in good faith and had reasonable grounds for believing that its conduct was not a violation of the law. Liquidated damages are available under the ADEA if the violation was willful. Under the EPA if the violation was willful liquidated damages are available for three years prior to the suit's filing date. Absent willfulness damages are limited to a two-year period. The 1991 Civil Rights Act carried with it the right to common law damages and the right to jury trial, but imposed a cap on the amount that each claimant could recover. The cap is $300,000 for employers of 501 or more employees all the way down to $50,000 for employers of 15-100 employees. If the defendant is a public sector employer, federal state or local, punitive damages are prohibited by both federal common law and the 1991 Civil Rights Act. The act also says that if a plaintiff is unable to recover damages under section 1981 they can recover under Title VII. But there cannot be double recovery and the cap applies to each claimant, not to each claim. So a plaintiff who has one claim involving sexual harassment and another involving termination is held to a single cap for all the claims. Compensatory damages require some real injury, not simply a technical violation of the law. Damages can be sought against state and local officials in their personal capacity under 42 USC 1981 and 1983, but not under Title VII or the ADA. There is a qualified immunity defense available in section 1981 and 1983 cases. Section 1983 is available against municipalities where the plaintiff can show that intentional discrimination was the official policy but is not available against states. In private sector cases, punitive damages are available even in the case of particularly egregious facts according to the Supreme Court in Colstad v. American Dental Association. But the plaintiff does have to show that there should be vicarious liability for the actions of supervisors under the facts of the case. The most common way to establish vicarious liability is to show that the discrimination was committed by an agent acting in a managerial capacity in the scope of his employment. There is a good faith defense available to the employer in these cases if they can show that they were taking reasonable steps to ensure their managers were complying with the law. If the employer hides evidence of discrimination or fails to respond to a discrimination complaint or responds inappropriately, the good faith defense is not available. A good faith effort has to involve not just a paper response, but actual implementation. That wraps up this look at the basics of discrimination and employment law. We hope you found it useful and we'd appreciate your filling out the evaluation forms available with the written materials on our website and faxing them back to us. We want to thank all of the attorneys who helped us explain this important and complicated area of the law. For the Federal Judicial Center and the ABA's section on Labor and Employment Law, thanks for watching.