 You're watching FJTN, the Federal Judicial Television Network. A Federal Judicial Center production. Basics of Employment Law for Law Clerks. Now from our studios in Washington, D.C. Here is our moderator, Peter Zinnoper. Hello and welcome to this joint production by the Federal Judicial Center and the American Bar Association's section of Labor and Employment Law. Labor and Employment Law is one of the largest and fastest growing developments of the federal district court docket, accounting for almost 10% of all civil filings in the year 2000. And federal question EEO cases made up more than 13% of all federal question cases. Only prisoner petitions represent a larger proportion of civil or federal question filings. The numbers in the appellate courts are even perhaps more impressive. Here, EEO cases comprised more than one-fifth of all civil federal question cases decided after oral argument in the year 2000. And one last statistic. In 1990, more than 8,000 employment discrimination cases were filed in federal courts. But 10 years later in 2000, more than 21,000 cases were filed, an almost 250% increase. Because of the growing importance of these cases to federal judges and support to their law clerks, we have gathered four of the nation's outstanding practitioners in this area to explore and explain some of the basic issues you are likely to encounter. They are Janna Howard-Carrie, a venerable Beacher and Howard in Baltimore, Maryland, who represents employers. Wendy L. Kahn of Zwerdling, Paul, Leibig, Kahn, and Wally in Washington, D.C., who represents labor organizations. Mark Dichter of Morgan Lewis and Bakius in Philadelphia, Pennsylvania, who represents employers. And Richard Seymour of Leif, Cabracer, Hyman, and Bernstein in Washington, D.C., who represents employees and civil rights organizations. The labor and employment section of the American Bar Association strives to achieve this kind of philosophical balance among the constituencies represented here in its programs, publications, and governance. Other members of the section include lawyers who represent government agencies that enforce labor and employment laws, as well as neutrals such as mediators and arbitrators. We are glad we can join with the Federal Judicial Center to provide a balanced analysis of this area of law to this year's class of law clerks. Thank you all for being part of the program. Wendy, I know that you and Janna are going to discuss some of the subjects initially that cover the broad range of equal employment opportunity laws. Wendy, you're going to be covering a range of the EEO statutes, Title VII, the ADEA, and giving us a broad overview of coverage, of jurisdiction. And Janna, you're going to be dealing with two of the hottest topics in this area, sexual harassment and the Americans with Disabilities Act, as well as certain selected issues that are highly relevant in the last 12 months of decisional reporting. So Wendy, if you'll lead off for us and cover a broad range of the EEO laws. Thank you. I think I'll first talk about Title VII of the Civil Rights Act of 1964, which was amended in 1972, 78, and 91. And I mention that because the 1991 amendments were a series of amendments that were a reaction to a series of Supreme Court cases and either reversing some of those cases, affirming them or clarifying them. And you will hear reference, I think, a lot in this presentation to the 1991 Civil Rights Act and changes that were made. And as you research in this area, you should be careful because cases prior to 1991 may or may not be good law in this field. It's important in Title VII to take a look at the 1991 amendments. Title VII of the Civil Rights Act prohibits private employers with 15 or more employees, state and local government employers, the federal government, although with different procedural rules. And by the way, in 1995, Congress passed the Congressional Accountability Act, which made Title VII and a number of other worker protection applicable to a number of congressional entities. There are, of course, exclusions, certain types of employees are not included, and certain types of employers are not included, but in general it's a very broad coverage with Title VII. Religious organizations may discriminate solely on the basis of religion, as we'll talk a little bit about later. Employment agencies are also covered by Title VII, labor organizations are covered by Title VII, and training programs are covered by Title VII. Title VII prohibits discrimination on the basis of race or color, and that covers all races, including whites. It prohibits discrimination on the basis of national origin. National origin means the basis of the country from which one's ancestors come, not the basis of citizenship. And the national origin discrimination is subject to the BFOQ or the Bonafide Occupational Qualification Defense, which we'll talk about later. Jana, you, I think, have some additional information about the national origin. Right, Wendy. It's actually a fairly broad protection, because people are protected not only because of their country of origin or the country of their ancestors, but also because they may have the physical or linguistic or cultural characteristics of a national origin group. So, for example, the EEOC has promulgated, as it has in many areas that we're going to be talking about, guidelines that give us a little bit more information about how it interprets this protection as it administers Title VII. And those guidelines say, for example, that the protection of against national origin discrimination extends to people who are discriminated against because of their marriage or association with people of a national origin group, even though the individual may not themselves belong to that group, and to people who have a membership or association with an organization that is identified with or seeks to promote the interest of a special or national origin group. Like, for example, I believe there was a case some time ago involving a Chicano advocacy group where protection was extended to folks who were members of that group, even though they did not have any national origin affiliation other than that. Also to people who are discriminated against because of their attendance or participation in schools or churches that are generally used by persons of a national origin group and because an individual's name or their spouse's name is associated with a national origin group even though that person may not belong to a particular national origin group. Now, when you talk about a national origin group, you know, what exactly do you mean? Well, obviously, a country and identified political subdivision if someone is discriminated against because they're from that subdivision, and that's an obvious basis for discrimination because of national origin. But protection has been found even where no country was recognized, and there's nevertheless a distinct cultural or ethnic identity, such as, for example, Gypsies or Cajuns, the claims of a Palestinian were titled to protection despite the fact that they were the non-existence of a state of Palestine. In addition, the existence of historical national entities is also supported claims for national origin. For example, Serbians and Ukrainians have been protected under Title VII. Now, as you mentioned, the Supreme Court has really only addressed the limits of the term national origin on one occasion, and that was in Espinoza versus Ferro Manufacturing Company where the court held, as you indicated, that Title VII doesn't protect against citizenship discrimination unless the citizenship protection somehow has the result or the effect or the purpose of national origin discrimination. It should be clear that this isn't a question of, say, WASP versus persons from other national origins. Discrimination among people of different national origins, such as, for example, a Cuban over an El Salvadoran, is prohibited under Title VII. And one unique aspect of national origin discrimination has to do with rules that some employers have adopted that relate to fluency in English requirements. The EEOC has addressed that. These kinds of rules tend to be, as diversity in the workplace increases, employers have been more likely to promulgate such rules. And the EEOC has taken the position that if you have an English-only rule that's enforced at all times, that is a burden on term of employment and could constitute discrimination on the basis of national origin. So such rules are closely scrutinized, and employers generally are allowed to have them only during certain periods of time if they have a business justification for doing so and if they put the employees on notice of the existence or the consequences of violating such a rule. So I think those are the major issues that we see, I should say, most frequently in the area of national origin discrimination. And I think it's actually interesting that while Title VII doesn't protect against discrimination on the basis of the country of one's citizenship, there may be other laws that do, and for instance, while we're not going into it, the Immigration Reform and Control Act of 1986 not only expands the Title VII prohibition against national origin discrimination to employers smaller than the 15-person limit that exists in Title VII, but it prohibits discrimination in hiring and discharge based on citizenship status, although there are some limitations. So almost none of these laws are these days the only source of protection against discrimination. One of the other important grounds protected against discrimination in Title VII is sex. Failure to promote someone because they're a woman would be a clear violation of that prohibition. Some of the things that the sex does not refer to under Title VII anyway is sexual activity or practice. It does not prohibit discrimination on the basis of marital status. It does not prohibit discrimination on the basis of sexual orientation. It is also subject to this BFOQ defense that we'll discuss later. And it also does prohibit discrimination based on pregnancy, childbirth, or related medical conditions. And Janna would like to expand on that. Yeah, interestingly, it took a while for it to become clear that the prohibition on the basis of sex does, in fact, extend to discrimination based on pregnancy because the Supreme Court, in fact, held for a while under the original act that it didn't. But in 1978, Congress took a hold of the situation and enacted the Pregnancy Discrimination Act, which provides simply that the terms because of sex or on the basis of sex include because of or on the basis of pregnancy, childbirth, or related medical conditions. And further provided that women who are affected by those conditions must be treated the same for all employment-related purposes. Now, as Wendy mentioned, we should all be cognizant of the fact that states have enacted statutes that go beyond the protections of Title VII in a number of areas. And one of those kinds of statutes have been those that provide special benefits for pregnant women. And in a subsequent Supreme Court case, California Federal Savings and Loan, the Supreme Court held that the Pregnancy Discrimination Act doesn't preempt the statute in that case, which required employers to provide paid leave to female employees who were disabled by pregnancy, childbirth, or related questions. The PDA said the court is really a floor beneath which pregnancy benefits may not drop, not a ceiling above which they may not rise. But at the same time, I think it's important to know that the courts have generally not approved actions by employers that discriminate in favor ordinarily of pregnant women against, to the disadvantage of males. Most issues under the PDA really revolve around whether a particular condition, like abortion or infertility, is related to pregnancy or childbirth and thus protected. And whether a particular action taken by an employer was on the basis of pregnancy or childbirth. And whether employee misconduct caused by or related to pregnancy or alleged misconduct was protected by the PDA. For example, whether an employee who refused to treat an HIV positive patient, because she was concerned of the impact at that time, this was some years ago on her pregnancy, was protected by the PDA. And the court in that case held no that she wasn't. I think those are the major points relating to the PDA. Thanks. Another ground under Title VII is religious discrimination on the basis of religion. This prohibits discrimination because of all aspects of religious observance and practice, as well as belief. And in a minute, Janna will talk a little bit about that. Under this provision, the employer has the duty to reasonably accommodate to an employee's or prospective employee's religious observance or practice if the employer can do so without undue hardship on the conduct of the employer's business. And this is what ground is also subject to the BFOQ defense, which we'll talk about later. Janna, do you want to expand a bit on the religious discrimination prohibition? Yeah, I think really the first issue there is what do we mean by religion? And as a general proposition, the courts have handled the definition of religion in Title VII in much the same way that they handle the military service exemption based on religious beliefs. And when they are dealing with the balance between religious rights and the First Amendment. Basically, in a nutshell, I think the employee has to show that they have been discriminated against based on a belief that is sincerely and deeply held. And in that sense, the term religion is interpreted to include, for example, self-proclaimed Satanist, a refusal to sign forms related to drug testing when that was against a person's firmly held religious beliefs regarding intrusions on their physical self. It also obviously includes church affiliation, agnosticism, atheism, religious beliefs that aren't held by any church or even by one's own denomination if they are sincerely and deeply held are protected religious beliefs. And the term also extends to religious practices and observances and even personal dress and grooming observances. And the interesting thing about religion is that in Title VII, there are other statutes to do this, but in Title VII it is the only basis for discrimination where employers are not only required to refrain from discrimination, but also required to accommodate the religious beliefs or observances of their employees. The Supreme Court in Trans-World Airlines versus Hardison held, however, that this requirement to accommodate does not require an employer to bear more than a de minimis cost to accommodate the employee's religious beliefs and that requiring more would constitute an undue hardship which employers are not required to incur under Title VII. In addition, Trans-World Airlines held that employers are not required to sort of carve out a special exception to their seniority systems to allow employees to get the work schedule they want in order to take care of their religion if that would violate, in that case, a collectively bargained seniority system. There are a couple of places, as Wendy suggested earlier, where religious discrimination is permitted. For example, religious institutions are permitted to discriminate in employment decisions when an employee's conduct is inconsistent with the employer's religious beliefs. For example, in one case, an academy was allowed to terminate a pregnant unmarried teacher because in that religion, having sex outside of marriage violated that school's code of conduct. But in another case, involving almost entirely the same set of facts, the result was the opposite because there was a question of fact as to whether the termination was because of the premarital condition, premarital fornication, which would have been a justifiable termination as being against the religion of the academy as opposed to pregnancy, which would have been sex discrimination under Title VII and not a justifiable termination. This exemption, as that case indicates, does not apply to discrimination based on protected characteristics other than religion, such as sex, race, or disability. I'd like to just add one point on that, and that is that an employer that discharges only pregnant women and takes no action against the men who got them pregnant is engaging in sex discrimination. Indeed. Thank you, Ray. As you can tell, the scope of Title VII is very broad and the grounds for discrimination we've spoken about already, the kinds of actions that are prohibited are very broad. The statute prohibits discrimination in hiring, discharge with respect to compensation, terms, conditions, privileges of employment, promotion, tests, other selection criteria, employee benefits, training, work assignments, really the whole gamut. And it also prohibits employers and others who are covered 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. That sort of language is used really to cover eventually almost any employment practice. Employment agencies, in addition, are prohibited from failing or refusing to refer someone to employment based on one of these protected characteristics or, in fact, from referring someone for employment based solely on one of these protected characteristics. Labor organizations are covered both as labor organizations and as if a labor organization is an employer, large enough employer, it's covered as an employer, but labor organizations are separately prohibited from excluding or expelling anyone from membership or otherwise discriminating against someone, failing or refusing to hire, or refer someone to a position or attempting to cause an employer to discriminate. And then training programs. Anyone who runs training programs, basically including apprenticeship programs, retraining on-the-job training programs, are prohibited from discriminating in admission to or employment or in any way in respect to these training programs. It's also unlawful under Title VII and many of the other laws are an entity to discriminate against an employee or an applicant because that person has opposed any practice made unlawful by the title. This is called the opposition clause and it's also unlawful to retaliate against someone because the person has made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under this title. That's called the participation clause. Title VII also specifically addresses discrimination in the printing or publication of notices or advertisements. There's limitations on the content. And now I mentioned before, excuse me, that there are some statutory defenses for gender, religion or national origin, but not for race or color, the employer may or the other entities may be able to establish a BFOQ, bona fide occupational qualification. That's when one of these factors say religion can be established as a factor in an employment decision, legitimate factor, if it is reasonably necessary to the normal operation of that particular business or enterprise. However, it is very narrowly construed and in effect the employer needs to be able to establish that all or practically all of the people in the protected category must be excluded in order for their normal business operation. We'll talk a little bit about that later. Customer preference, for example, is not a BFOQ. However, gender specific requirements for employment and professional sports generally is a BFOQ. There's another defense which is in section 703H of this Title VII, which has to do with bona fide seniority systems and that were not adopted with the intention to discriminate. Those and the consequences of them are valid even if they perpetuate the effects of prior discrimination. In Title VII cases there's a wide range of remedies. In all cases, injunctive relief may be appropriate. Attorney's fees and costs can be awarded. Affirmative action as may be appropriate. Such things as reinstatement or hiring of employees with or without back pay. These are typical remedies in Title VII cases as well as other equitable relief giving someone the promotion that they should have had. Now I want to make a comment about these back pay and make-hole remedies that are typical in Title VII. There is a presumption in Title VII in favor of back pay if discrimination is found and in favor of injunctive relief. One of the purposes of Title VII is to make victims whole. The courts have sort of crafted something called rightful place relief is the principle to sort of implement the make-hole concept. Back pay typically includes what you would imagine wage or salary, regular or anticipated wage increases that would have occurred during the period over time pay that you would have, a victim would have earned commission earning, shift differentials, bonuses, fringe payments, sick and annual leave that the person would have earned, pension benefits they would have earned, medical expenses that they incurred that they wouldn't have incurred if, in a discharge case if they hadn't lost their job. Expenses for job search, in effect it's to make the individual whole for the losses, the monetary losses that they incurred. They also may, back pay awards may have prejudge, prejudgement interest may be awarded on back pay awards. Now the victim does have the duty to mitigate back pay losses and the amount will be reduced by any interim earnings or an amount which could have been earned by using reasonable diligence to find substantially equivalent employment. There is a conflict in the courts about whether monies as unemployment compensation and certain other kinds of benefits, pension benefits should be subtracted from back pay or whether they are basically from a collateral source which is not something that should be deducted from back pay. By the way there is a two year limit under Title VII, back pay may not be awarded to a date more than two years prior to the date of the filing of the EEOC charge. In certain Title VII cases, those that involved intentional discrimination, which is not all Title VII cases as we'll discuss, the statute in 1991 was amended to provide for an award of compensatory damages and in some cases punitive damages. Compensatory damages include damages for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and punitive damages can be awarded in cases of malice or reckless indifference. Now there is our caps on the dollar amount of compensatory and punitive damages that can be awarded based on the size of the employer. I think before we go on to talk about the theories of discrimination, Jana probably can talk a little bit about sexual harassment and many interesting developments in that area. One thing I'd like any of the panelists to comment on and that is especially in light of these caps that apply, the damage caps that grow larger depending upon the increased size of the employer's workforce. The litigation that you've seen in the area of single employer or joint employer designed on the part of plaintiffs to expand the size of the employer in order to raise the caps. Any comments from any of the panelists on that? There's a wide variety of viewpoints among the circuits on what kind of evidence is enough and what a court should look at to see whether the employment relationship is a joint employment relationship. Many circuits follow the traditional National Labor Relations Board test with the eight factors, I believe it is, that the NLRB looks to. The Seventh Circuit has its own set of standards and there is a substantial amount of variation that's running out time to get into the ins and outs. There also are situations where you have ratification of a subsidiary's or franchisee's actions. The employer may be the franchisee that may have some toll-free number for sexual harassment. It may have sexual harassment policies, for example, that they insist the franchisees follow and they are trying to make sure the franchisees do not get into trouble, but they themselves then take over that part of the personnel operation and may become accountable. That really points up some of the danger of importing principles that were developed for one purpose and using them for another. The caps on damages really were related to essentially looking at the size of the employer and what would be an appropriate penalty for that size employer. If you have a defendant, the fact that you may find someone as a joint employer for certain purposes of evidentiary purposes or liability purposes, the question is who are you assessing the damages against? Is that an entity which was envisioned by Congress to be subject to the higher limits? Shall we go to sexual harassment? Quite on. This also is sort of a relatively late comer in terms of judicial approval under Title VII. Sexual harassment was recognized as a form of sex discrimination for the first time by the Supreme Court in 1986 in the case of Meritor Savings Bank versus Vinson. And since then, well, actually the EEOC, perhaps even prior to then, I'm not entirely sure about that, had promulgated guidelines to define harassment as taking basically one of two forms. The first one was called quid pro quo harassment and that basically included unwelcome sexual advances, request for sexual favors and other verbal or physical conduct of a sexual nature when submission to that conduct was made a term or condition of the individual's employment or was used as the basis for employment decisions. The other form of sexual harassment was called basically hostile working environment harassment and that involved sex-based unwelcome conduct that had the purpose or effect of unreasonably interfering with an individual's work performance or creating and intimidating hostile or offensive working environment. Now, those two sort of forms of harassment, the distinction between them has been obliterated as far as assessing liability against employers is concerned by two fairly recent Supreme Court decisions in Farragur and Ellarth, and that was in 1998. These two cases really changed dramatically the ground rules for assessing a liability in sex harassment cases and just to spend a moment on them because they are so important and they do really lay out the foundation for much of what's happening in sexual harassment right now and it's a litigation. In that case, the Supreme Court reason really applying the aided in the agency provisions of the restatement of an agency that an employer is going to be strictly liable for harassment of any kind created by a supervisor who has immediate or successively higher authority over the harassed employee. Even if the employer in their management has no knowledge that the harassment is going on, it's basically a strict liability kind of situation if that supervisor's harassment culminates in a tangible employment action, an adverse action generally, such as a discharge or a demotion or an undesirable assignment. In that kind of situation, the employer is liable, there's no defense available. If, however, no tangible action is taken, which is maybe the case if a supervisor is involved in, is almost always the case if a supervisor is not involved, then the employer has an affirmative defense to liability for sexual harassment and in order to take advantage of that defense, it has to prove two things. The first thing really has two parts to it. The employer has to show that it exercised reasonable care to prevent and reasonable care to promptly correct sexually harassing behavior. The second prong is if the employer establishes the first one, the employer must also establish that the employee, in question, unreasonably failed to take advantage of the corrective and preventive measures that the employer had in place or failed to take reasonable efforts to avoid harm otherwise. Now, that raises several different questions. The first one is did the harassment result in a tangible job detriment? If it didn't, then the employer at least may have the opportunity to assert the affirmative defense. So we get to the question of what is a tangible job detriment and in the Supreme Court decisions, the court said that it's generally looking at a significant change in employment status, such as firing, failing to promote, or decisions causing a significant change in benefits. The court was careful to note with approval some earlier decisions by circuit courts holding that things like a bruised ego or a reassignment to a less convenient job or a demotion without any change in pay duties, benefits, and prestige was not a tangible job detriment. It would take more than that. Since Farragher and Ellarth, this has been a topic of considerable litigation and controversy in the circuit courts, I would say that for the most part, the courts are adhering to the language of the Supreme Court in finding that a tangible job detriment occurred only when there was a change in position or status that had present or in some cases, potential adverse economic consequences. But as I'm sure Rick would be quick to point out, that is not always the case. Then, you know, if you have a tangible job detriment, again, it has to have culminated in harassment. And the plaintiff basically has to show that it did so. And usually you do that in accordance with the typical burden-shifting pattern of proof in discrimination cases. That is, the plaintiff would show that a prima facie case of discrimination, the employer, if they could show a legitimate non-discriminatory reason for the tangible job detriment that had nothing to do with harassment, would do so and then the plaintiff is able to show evidence that those reasons are pretextual and that in fact the real reason was the culmination of harassment. If I could just interject one thing as you had predicted, there are some courts that have held that a significant negative effect in status or prestige of the individual will constitute a tangible job detriment because that is an employer action. Yes. Obviously the person who engages in this tangible job detriment usually is a supervisor and that's who we're talking about here and there are questions that arise as to whether an individual falls within the definition of a supervisor. I would say that as a general proposition the courts apply about the same standard in this context in Title VII cases as they apply in National Liberation Act cases and looking at whether somebody is a supervisor. Usually if they've got the authority to hire, fire, promote, demote, transfer or discipline, that's going to amount to a supervisory status and in some cases even if they have, they don't have that authority directly but have the authority to effectively recommend those actions then that will be enough. Now, if there is no tangible job detriment then the employer may have the opportunity to establish this reasonable care defense where he must show that he took reasonable care to prevent and correct the alleged harassment. There are, this has been the, I guess one of the fastest growing areas of litigation that we've seen in recent years. Generally in establishing that you've taken, I guess the first point I should make is that the courts insist that the employer show both that they have tried to take reasonable steps to prevent and to correct the harassment. Just correcting it after the fact is not enough. In terms of prevention, the first thing the courts usually look for is whether or not the employer had a policy prohibiting harassment. Although as the Supreme Court said in Farragorn L. Earth, a policy may be addressed but it's not necessarily required in some smaller, smaller companies that might not be an absolute required element of the defense but in most cases it has been. The policy statement also, the courts are going to require that the employer have acted to get the word about its policy out. Even if the plaintiff knows about the policy, liability is going to attach if the policy was not really an effective preventative program. And there are a number of cases that have been addressed, whether a particular policy, whether the employer's attempts to perpetuate that policy were enough to allow it to take advantage of the affirmative defense. With respect to showing reasonable care in the correction of harassment, the issues focus on whether the employer did a proper investigation and whether if it concluded it effectively remedied the harassment and did what it should in that area. In general, with respect to the employee's unreasonable failure to take advantage of those preventive or corrective opportunities provided by the employer, the second major prong of the defense, the courts have begun to look at these issues and the question really focuses generally whether if the employer had a grievance procedure or a complaint procedure, whether the employee had a good reason for not taking advantage of it. And in general, if the policy was a good one, it was an effective one, and if it had been promulgated and enforced effectively in the past, then the courts are going to find that the employee's failure to use it cannot be justified just based on your rumors that it's not effective or beliefs that they would be retaliated against for complaining under the procedure or that their complaints wouldn't be taken seriously unless they had some good evidence to support that kind of belief. I think it should be noted that these principles apply not just to sexual harassment, but they apply to other forms of harassment as well. The Supreme Court suggested that would be the case and it has in fact been so held in a number of cases since Elearth and Faragher. We should note that in sexual harassment you have various other elements of the claim. First of all, the plaintiff has to prove that the harassment was based on sex and a number of issues have arisen on that question. First of all, was harassment by a male against a male could be prohibited or was covered by Title VII and the court held that on the on-call case on Kale v. Sundowner Offshore Services in 1998 that same sex harassment is actionable under Title VII but not harassment based on sexual preference. Another issue that arises in terms of was the harassment based on sex relates to what we call the Equal Opportunity Offender, the person who basically harasses both males and females in the same way. I think it's fairly clear that that kind of harassment where someone is just generally nasty to all of the people they supervise, for example, is not actionable under Title VII but there are a lot of issues out there about whether the language used or the circumstances would suggest that the conduct was in fact sex-based or had the effect, a more harsh effect on women than on men. The harassment has to be unwelcome and that is assessed based in a very individualized way based on the facts and circumstances of each case. Questions come up about whether, for example, the affair was consensual such that it was not, in fact, harassment and about whether or not the plaintiff in the case, in fact, engaged in the same kind of offensive sex-based behavior as her alleged harasser did. And there are a lot of cases that examine those principles. The other big issue in harassment has to do with when the harassment is sufficiently severe and pervasive to hear about hostile work environment harassment to enable a plaintiff to establish a case without showing the tangible job action that we talked about earlier. And again, the courts are clear that the harassment must be severe or pervasive enough to create an environment that a reasonable person would find hostile and abusive and that also is subjectively perceived by the plaintiff to be abusive. The factors that the courts look at in assessing this were discussed at length in Harris v. Forklift Systems, a case decided by the Supreme Court back in the early 90s, and basically the court held there that you have to look at circumstances such as the frequency of the conduct, how severe it was, whether it was physically threatening or humiliating as opposed to being a mere offensive utterance and whether it unreasonably interfered with an employee's work performance and in some cases did it result in psychological harm. But none of these elements are essential to a determination that the conduct amounted to sexual harassment, they're all however relevant. That is a pretty quick and dirty overview of harassment with just two further points. Harassment by co-workers is prohibited just as is harassment by supervisors and where the harassment involves co-worker harassment, the courts apply generally a negligence standard to the employee complain or give notice and if not was it reasonable and once if the employer had notice of it did they give a prompt and effective remedial measure. In addition, harassment by third parties, customers, patients for example in a hospital may be illegal as well. Wendy? Jana mentioned that in the sexual harassment cases she discussed one of the typical methods of approving a case. I want to talk a little bit about the theories of discrimination that have developed under Title VII but are applicable also to most of the other discrimination statutes that are out there, some of which we're talking about today. The first theory is the disparate treatment or intentional discrimination and this is unlawful under Title VII when it's based on race, color, religion, sex or national origin under the age discrimination act when based on age under the Americans with Disabilities Act when based on disability and it's the most easily understood of probably the kinds of discrimination which is that the employer simply treats some people in a protected class or an individual less favorably than others because of this criteria. Now proof of discriminatory motive is critical. Sometimes it can be inferred from the mere fact of differences in treatment and some of our other colleagues here will be talking about this. Usually the finding of intention to discriminate is there's sort of two major ways of establishing it. One and probably the less frequent way is with direct evidence of intentional discrimination. This would be something like a policy that says women are not allowed in this job or black should get fewer benefits than whites or there's an age limit on how old you have to be or must be to transfer to certain positions, those kinds of things. They don't happen too often anymore but they do. The rebuttal to such kinds of evidence would either be disputing the existence of the policy or if there is a statutory defense such as the BFOQ that we talked about before or in the age discrimination there are some statutory defenses, that can be raised. The more typical method of also another kind of direct evidence might be statements by high level decision makers demonstrating bias against the plaintiff with regard to whatever the decision at issue was such as the supervisor's comments that someone's problems had to do with her age and entry into menopause and then takes an action relating to that. The rebuttal of these kinds of evidence is usually they're disputing the factual showing or trying to establish that the comments were not made close in time to the challenged action or demonstrating that the employer would have reached the decision in the same, in the absence of that and we'll talk about that a little bit later or if there is a statutory defense raising the statutory defense the more typical theory of discrimination is one in which the plaintiff must rely the parties on circumstantial evidence not direct evidence and as a result of a series of Supreme Court cases there is a burden shifting analysis which is known fondly or not so fondly as the McDonnell Douglas Verdine and then there are some other cases that are sometimes mentioned, Hicks, Reeves burden shifting analysis which is the three step process that Jana mentioned earlier which first of all the plaintiff must establish a prima facie case of discrimination in the case of a refusal to hire for example this would be that the plaintiff was within the protected class that she sought was qualified for the position that the employer was hiring she was rejected for the position that the employer continued to seek applicants and gave the position to someone of similar or lesser qualifications the burden of establishing a prima facie case is not onerous and then the burden shifts to the defendant to articulate a legitimate non-discriminatory reason for its action all the defendant has to do is introduce admissible evidence which if believed by the tryer of fact would support a finding that something other than discrimination motivated the challenged employment decision and this burden is only burden of production on the defendant not burden of persuasion then the third step is that the burden again shifts to the plaintiff and at this final stage the plaintiff has the opportunity to prove by a preponderance of the evidence that the non-discriminatory reasons that are offered by the employer were not the true reasons but merely a pretext for discrimination so in much of the litigation that revolves around what kind of evidence the plaintiff must show to satisfy the burden at this pretext stage of the analysis and Rick and I think Rick one of our colleagues will be discussing Mark, okay, we'll be discussing this in greater detail I think that before we conclude this part of the program we would like to have Jana address the Americans with Disabilities Act and the issues that are likely to come before federal judges and law clerks especially by virtue of the filing of summary judgment motions because of the number of hurdles that a plaintiff has to jump over to prove a case of disability discrimination under the ADA Title I Sure, I'd be happy to, Peter the ADA basically prohibits employers from discriminating against qualified individuals with a disability it differs in that it doesn't prohibit discrimination on the basis of a characteristic that everyone has it singles out a particular group of people those who are qualified notwithstanding the fact that they have a disability in addition this law requires that employers make reasonable accommodations for the disability of a qualified applicant or employee if doing so would allow that person to perform the essential functions of the job that he or she is seeking and of course this leads to a lot of subsets of questions and to order to make out a complaint the individual first of all has to show that they have a disability and if they are unable to do so and this is a question that comes up frequently on summary judgment decisions then they are not able to proceed with their claim now what's a disability? it is a multi-part definition I think most of the things I've talked about today have had multiple parts but the statute defines a disability as a physical or mental impairment that has a substantial limiting effect on a person's ability to carry out a major life activity it also includes a record of such a disability or being regarded as having such a disability even if the person does not have it the impairment part basically refers to physiological disorder or condition or cosmetic disfigurement or anatomical loss that affects one or more of the body's systems mental impairments also are covered and that is obviously an area of much debate about what qualifies as a mental impairment there's a lot of case law on that the EEOC refers complainants and employers to the American Psychiatric Association a diagnostic and statistical manual of mental disorders as being relevant for identifying those disorders now there are some conditions that are not covered illegal drug use is not covered although people who participated in or are participating in a supervised rehab program and are no longer engaging in the illegal use of drugs are covered and then there are some statutory exclusions of certain types of conditions such as bisexuality, transvestitism and so forth and so on those are listed in the statute the EEOC has said physical characteristics personality traits just having cultural disadvantages those are not disabilities and pregnancy is not a disability predisposition to illness or sickness the courts have also focused on whether impairments that were really temporary in nature were covered and generally they are not but assuming the person has an impairment they also have to show that that impairment substantially limits them in a major life activity major life activities have been interpreted pretty broadly by the EEOC and it has included that term to include reproduction so that an individual who was infected with HIV was substantially limited in the major life activity of reproduction and was therefore covered by the ADA that impairment though as I said has to be substantially limiting determining whether it is factors such as its nature and severity whether it is delast, whether it is permanent or has a long-term impact there is also an issue of what if the impairment has been mitigated or the effects of it have been medicated or otherwise corrected through glasses or some other mitigating measure and the Supreme Court has held that in assessing whether an individual is substantially limited the court can and should take into account any measures that the individual is taken to correct for or mitigate a physical or mental impairment and if it has been mitigated and is no longer substantially limiting because of that mitigation or medication then the person is not covered there are also questions that I'm not going to get into whether someone is substantially limited in the major life activity of working because that is a question unto itself then as I mentioned whether if one has a record of an impairment or is just regarded as having one they would also be covered but in both of those analyses it's important to look at both of the prongs the person has to have a record of an impairment that is substantially limiting in a major life activity that is regarded as having not just an impairment but one that is substantially limiting from there you go to whether the person is a qualified individual with a disability because it's not enough just to be disabled one has to show that they would be able to do the job notwithstanding the disability the essential functions of the job if reasonable accommodations are made this leads you into the question of what are the essential functions of the job in question whether the employee can perform them whether they're impairment if not whether a reasonable accommodation would enable the employee to do so and if so whether the accommodation would result in undue hardship to the employer I think that probably each of us have seen countless cases on each one of those separate issues that you've raised and there's no end in sight I think you would agree with me absolutely there's plenty of fodder for litigation in all of that well in fact the statute envisions that it would be a case by case analysis which requires that well we have had a brief fact packed concept packed overview of the substance of equal employment opportunity law litigation and now we're going to move into the procedural portion of our program and Rick Seymour and Mark Dichter are going to be responsible for presenting that Rick is going to conclude that we're going to move backwards in this order with a discussion about the remedies available under the employment laws and attorney's fees if the courts ever get that far and a certain number of courts have in the middle section Mark is going to cover the discovery issues, summary judgment and evidentiary issues and Rick you're going to start off with talking about administrative procedures exhaustion of remedies and timeliness so without further ado Rick Seymour for many of the fair employment statutes that one sees in litigation there's a requirement that a charge of discrimination be filed with the Equal Employment Opportunity Commission and I'll try to go point by point but there's a lot of complexity in the field the main purpose of the charge filing requirement is to give the employer notice or the union or the employment agency whoever is charged notice that there is a charge and to give the agency that receives the charge the opportunity to do an investigation see if there's potential merit to the charge and if there looks like potential merit to conciliate it this is not just an idle activity the EEOC receives about 86,000 charges of discrimination a year there are only about 21,000 lawsuits filed in federal courts per year so there is a major winnowing that takes place inside the administrative process the Supreme Court is going to be deciding this term whether a charging party must swear to the charge within the original period of time whether they're filing the charge or whether an unsworn charge is going to be sufficient under the EEOC regulations the person can sometime thereafter but outside of the charge filing period cure the defective as not having been verified once the EEOC receives a charge statutorily it's required to provide notice to the employer within 10 days the important thing about the EEOC process with respect to the private sector and state and local government sector as opposed to the federal sector which I'll talk about at the end is that it's an investigative process not an adjudicative process the EEOC does not issue findings of fact and conclusions of law it's not reviewed on the record trials with respect to what the EEOC decides or does not decide are completely de novo in an individual can sue whether or not the EEOC has actually reached an issue the EEOC process once the charge is in and often before much investigation has taken place is to make alternative dispute resolution available to many of the charging parties and respondents this mediation process occurs only if both sides agree to it but there are a substantial number of cases that do get resolved through that mediation as the EEOC goes on with this investigation it's got the authority to request the employer to provide information it's got the authority for more information it can interview witnesses if someone fails to provide the information that has been requested it can issue an administrative subpoena and if the person receiving the subpoena declines to respond to that then it can go into federal court to seek enforcement the EEOC process ends with a reasonable cause determination which is not a finding of discrimination it is simply that based upon the investigation it did cause to believe that the allegations of the charge are true or else it does not if it finds that there is cause the EEOC then invites the parties to conciliate and resolve the matter or the EEOC if that conciliation fails the EEOC can then file suit and try to obtain relief based upon the information in the charge now the EEOC and all other federal enforcement agencies only between 4 and 500 lawsuits per year in federal district courts that means that about 20,500 are filed by private parties the if there is no suit by the EEOC in a reasonable cause case the EEOC issues a notice of right to sue if the EEOC concludes its process and cannot determine that there is cause it issues a notice of right to sue there is a substantial amount of litigation about what happens when the EEOC has not had the charge for the full 180 days contemplated by the statute and it has not completed its process and the charging party requests an early notice of right to sue now after the 180 days are up