Employment Discrimination Law and Practice Hornbook

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ISBN: 9780314150127 | 0314150129
Cover: Hardcover
Copyright: 9/30/2004

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Surveys the claims, defenses, procedures and remedies fundamental to an understanding of the contemporary federal law of employment discrimination. Because of the rapid pace of change in this field, an unusually high proportion of the cited cases included were decided within the past several years. To serve the needs of law students, the book tracks the coverage of the most important issues canvassed in the principal employment discrimination casebooks.

Preface

Acknowledgements

WESTLAW Overview

An Introduction to Title VII of the 1964 Civil Rights Act and the Civil Rights Act of 1991

An Overview

(9)

Reconstruction-Era Civil Rights Legislation Affecting Employment Discriminatin

The Civil Rights Acts of 1866, 1870, and 1871

In General

(1)

Section 1981

(17)

The Partial Legislative Overruling of Recent Supreme Court Restrictions on the Use of Section 1981, and the Resulting Relationship Between Section 1981 as Amended and Section 1983

(4)

[Reserved]

(1)

Jett, Will, and the Civil Rights Act of 1991: The Proof Requirements of Section 1981 in Actions Against State or Local Governments

In General

(1)

Claims Arising From Acts of Discrimination on or Before Nov. 21, 1991

(1)

Claims Arising From Intentional Race Discrimination After the Effective Date of the 1991 Act

(2)

The Practical Significance of the Jett-Related Language in the Civil Rights Act of 1991

(2)

[Reserved]

(1)

Recent Procedural Limitations on the Reconstruction Civil Rights Acts

In General

(1)

Expansion and Contraction: The Supreme Court's Dialectic Approach to Interpreting the Reconstruction Civil Rights Acts

(4)

Title VII of the 1964 Civil Rights Act: Coverage, Prohibited Grounds of Discrimination, Specially Treated Practices, and Defenses

Title VII in General

(3)

Coverage

Protection for Individuals

(5)

Employers Governed by Title VII/ADEA

(7)

American Corporations' Employees Working Abroad and ``Foreign'' Employers' Personnel Stationed in U.S. and Overseas: Of National Origin, Alienage and Ancestry Discrimination Under Title VII/ADEA, IRCA, and 42 U.S.C.A. § 1981

(8)

Religious Employers: Coverage, Exemptions, Defenses

(2)

``Purely'' Religious Organizations

(2)

Religiously Affiliated Educational Institutions

(2)

The ``BFOQ'' Affirmative Defense Based on Religion

(1)

[Reserved]

(1)

Constitutional Problems Surrounding Regulation of Religious Discrimination

In General

(3)

Title VII's Basic Substantive Prohibitions

In General

(2)

[Reserved]

(1)

The Meaning of Discrimination Because of ``Race,'' ``Color,'' ``National Origin,'' ``Sex,'' and ``Religion''

The Meaning of ``Race''

(2)

Accent or Language Rules as National Origin Discrimination

(3)

Discrimination Based on Sex

(7)

Sexual Harassment

(8)

Quid Pro Quo (Tangible Benefit) Harassment: Conduct Constituting

(3)

Quid Pro Quo (Tangible Benefit) Harassment: Employer Liability For

101

(1)

Hostile Work Environment Harassment: Conduct Constituting

102

(8)

Hostile Work Environment Harassment: Employer Liability For

110

(6)

Hostile Environmental Harassment by Co-Workers, Customers, and Other Third Parties: Employer Liability For

116

(4)

Ancillary Sexual Harassment Issues

120

(1)

First Amendment Implications of Imposing Liability for Environmentally Harassing Speech

121

(2)

The Special Statutory Concept of ``Religion''

123

(6)

[Reserved]

129

(1)

Particular Practices Given Special Statutory Treatment

Wage Discrimination and the Interrelationship With EPA

129

(1)

Restrictions Relative to Pregnancy and Abortion

130

(6)

Fetal Vulnerability Rules

136

(1)

Seniority Systems

137

(2)

Professionally Developed Ability Tests

139

(2)

[Reserved]

141

(1)

Retaliation

In General

141

(15)

[Reserved]

156

(1)

Constructive Discharge

In General

156

(6)

[Reserved]

162

(1)

Union Liability

In General

162

(2)

Modes of Proof for a Title VII Claim

In General

164

(1)

Individual Disparate Treatment---``Direct'' Evidence

In General

165

(9)

The ``BFOQ'' Affirmative Defense

174

(5)

[Reserved]

179

(1)

Individual Disparate Treatment---Inferential Proof

In General

179

(36)

The Problem of ``Mixed Motives''

215

(10)

The Defense or Mitigation of ``After-Acquired Evidence''

225

(5)

[Reserved]

230

(1)

Systemic Disparate Treatment

In General

230

(9)

[Reserved]

239

(1)

The Relief Stage of the Bifurcated Systemic Disparate Treatment Action

In General

240

(1)

[Reserved]

241

(1)

How the Individual and Systemic Disparate Treatment Cases Interrelate

In General

241

(1)

[Reserved]

242

(1)

Neutral Practices with Disproportionate Adverse Impact

In General

242

(19)

Title VII Administrative Prerequisites, Procedures and Remedies

Title VII Procedure in General

261

(1)

Administrative Prerequisites and Procedures

Administrative Prerequisites in General

261

(7)

Continuing Violations

268

(12)

Charge--Filing Procedure

280

(3)

From EEOC to Action in Federal or State Court

283

(6)

Arbitration

289

(16)

Federal Employee Lawsuits

305

(2)

Exhaustion of Administrative Remedies

307

(3)

Remedies

310

(1)

Suit by EEOC

311

(1)

Class Actions and Plaintiff Joinder

312

(10)

Relation of Federal Lawsuit to EEOC Investigation

322

(3)

Employer Recordkeeping Requirements

325

(2)

[Reserved]

327

(1)

Retroactivity of the Civil Rights Act of 1991

In General

327

(3)

[Reserved]

330

(1)

Title VII Remedies

Front Pay, Back Pay and Reinstatement

330

(16)

Compensatory and Punitive Damages

346

(19)

Defense Checklist: Reducing Remedial Exposure

365

(1)

The ``Same--Decision'' Defense in Mixed--Motive Cases: Barring All Remedies Under ADEA, and All Remedies Except Injunctive Relief and Attorney's Fees Under Title VII

365

(1)

The ``After--Acquired Evidence'' Defense: Relieving the Employer of Liability for Reinstatement and Front Pay, and Limiting Back Pay to the Period Preceding Employer's Discovery of Evidence of Plaintiff's Severe Misconduct Warranting Discharge

366

(1)

Taking Prompt, Appropriate Corrective Action Will Avoid or Limit Employer Liability for a Co-Worker's or Supervisor's Creation of a Hostile Work Environment in Sexual or Racial Harassment Cases

367

(1)

General Back Pay Limiting Tactics

368

(1)

General Front Pay Limiting Tactics

368

(1)

Collateral Source Offsets to Back and Front Pay

369

(1)

General Emotional Distress Limiting Tactics

369

(1)

Punitive Damages Limitations

369

(1)

Prejudgment Interest

370

(1)

Limiting Recoverable Attorney's Fees

370

(1)

Tax Treatment of Monetary Recovery including Attorney's Fees

370

(6)

[Reserved]

376

(1)

Title VII and ADEA Remedies Compared

In General

376

(2)

[Reserved]

378

(1)

Retroactive Seniority for Proven Victims of Discrimination---A First Look at the Problem of ``Reverse Discrimination''

In General

378

(2)

[Reserved]

380

(1)

Affirmative Action by ``Voluntary'' Programs and Judicial Decrees

In General

380

(19)

[Reserved]

399

(1)

Procedures for Challenging Affirmative Action

In General

399

(5)

[Reserved]

404

(1)

Aggregate Effects of the 1991 Act on Claims Asserting Group and Individual Rights, Intentional and ``Impact'' Discrimination

In General

404

(5)

The Combined Use of Sections 1983, 1985(3), or 1981 with Title VII for Discrimination Claims Against State and Local Government Employers

Introduction

409

(1)

[Reserved]

410

(1)

To What Extent, If Any, Does a Title VII Claim Preempt a Constitutional or Federal Statutory Claim Under Section 1983?

In General

410

(4)

[Reserved]

414

(1)

Section 1983 Claims Generally Not Preempted by Title VII

In General

414

(7)

[Reserved]

421

(1)

What Elements Must Be Proven Under Section 1983 and Title VII in Circuits That Permit Actions Pursuing Both

In General

421

(3)

The Age Discrimination in Employment Act of 1967, as Amended (``ADEA'')

Introduction

424

(15)

[Reserved]

439

(1)

Age as a ``Determinative'' Factor: ``Mixed Motives'' in ADEA Cases; Stricter Disparate Treatment Proof Requirements After Hazen?; The Post-Hazen Decline of the Neutral Practice/Adverse Treatment Theory; ADEA Retaliation; ADEA BFOQ Defense

Age as a ``Determinative'' Factor: ``Mixed Motives''

440

(3)

Stricter Disparate Treatment Proof Requirements After Hazen?

443

(2)

The Post--Hazen Decline of the Neutral Practice/Adverse Impact Theory

445

(8)

ADEA Retaliation

453

(1)

ADEA BFOQ Defense

453

(1)

The Older Workers Benefit Protection Act

Background

454

(1)

The Supreme Court's Betts Decision and the Enactment of OWBPA

455

(1)

OWBPA Provisions

455

(1)

[Reserved]

456

(1)

Waiver of Rights or Claims Under the ADEA after OWBPA

Background

456

(1)

OWBPA Resolution

456

(3)

[Reserved]

459

(1)

ADEA Procedures

In General

459

(4)

[Reserved]

463

(1)

ADEA Remedies

In General

463

(6)

The Equal Pay Act of 1963

Introduction

469

(1)

EPA Coverage, the Prima Facie Case and Affirmative Defenses

Coverage

470

(2)

Equal Work

472

(1)

Unequal Pay

473

(1)

Equal ``Rate'' of Pay

474

(1)

The Necessity of a Comparator Within a Single ``Establishment''

474

(2)

The Employer's Defenses

476

(4)

[Reserved]

480

(1)

Retaliation

In General

480

(1)

[Reserved]

480

(1)

Unequal Pay for Equal Work: EPA and Title VII Compared

In General

480

(4)

[Reserved]

484

(1)

Enforcement and Remedies

Enforcement

484

(1)

Limitations

485

(1)

Continuing Violations

486

(1)

Remedies

487

(2)

[Reserved]

489

(1)

Gender--Based Compensation Discrimination Prohibited by Title VII Although Not Reached by EPA

In General

489

(2)

[Reserved]

491

(1)

The Comparable Worth Theory

In General

491

(5)

Prohibitions on Race Discrimination in Federally Funded Programs and Sex Discrimination in Federally Funded Education Programs: Titles VI and IX

Introduction

Titles VI and IX Generally

496

(1)

[Reserved]

497

(1)

Title VI

In General

497

(1)

Covered Programs or Activities

498

(1)

Exemptions

499

(1)

Administrative Enforcement

499

(1)

The Elements of a Private Action Under Title VI

499

(3)

Damages

502

(2)

[Reserved]

504

(1)

Title IX

In General

504

(1)

Covered Programs or Activities

504

(2)

Exemptions

506

(1)

Administrative Enforcement

506

(1)

Elements of the Private Action Under Title IX

507

(2)

Sexual Harassment of Students Under Title IX

509

(5)

Damages

514

(1)

College Athletic Programs Under Title IX

515

(1)

The Regulatory Framework

516

(1)

The Policy Interpretation

516

(1)

Policy Interpretation Compliance Area 1: Equal Opportunity in Athletic Scholarships

517

(1)

Policy Interpretation Compliance Area 2: Equivalence in Other Athletic Benefits and Opportunities

518

(1)

Policy Interpretation Compliance Area 3: ``Effective Accommodation'' of the Interests of Both Sexes

519

(1)

Determinations of Students' Interests

519

(1)

The Selection of Sports Offered

520

(1)

The Levels of Competition Available

521

(3)

Costs and Fees: Federal Rule of Civil Procedure 54(D), The Civil Rights Attorney's Fees Awards Act, and Federal Rule 68

Rule 54(d) Costs to Prevailing Plaintiffs or Defendants

In General

524

(2)

[Reserved]

526

(1)

Introduction to the Civil Rights Attorney's Fees Awards Act

In General

526

(22)

[Reserved]

548

(1)

Lodestar May Not Be Enhanced for ``Contingency,'' or Risk of Loss

In General

548

(3)

[Reserved]

551

(1)

Prevailing Defendants

In General

551

(3)

[Reserved]

554

(1)

Rule 68 Offers of Judgment

In General

554

(8)

Procedural Aspects of Litigating Under the Reconstruction Statutes and Contemporary Civil Rights and Employment Discrimination Legislation

Overview---The New Federalism in Civil Rights Forum Selection: State Primacy Reasserted

In General

562

(10)

[Reserved]

572

(1)

Federal Subject Matter Jurisdiction

Original Jurisdiction

572

(2)

Special Situations Requiring De Facto Exhaustion of State Tribunals as Prerequisite to Asserting the Federal Claim

574

(16)

Appellate Jurisdiction of the Federal Circuit Courts

590

(3)

Venue

593

(3)

Younger Nonintervention

State Proceedings

596

(1)

Criminal

596

(2)

Quasi--Criminal: State a Party

598

(1)

Civil: State a Party

598

(1)

Civil: State Not a Party, but Important State Interests Involved

599

(1)

Judicial Interests

599

(1)

Administrative Interests

600

(1)

``Pendency''

600

(1)

Rationale

600

(1)

Absence of Pending State Proceedings

601

(1)

Actual Threats of Prosecution

602

(1)

Implied or Apparent Threats of Prosecution

602

(1)

Unmatured Threats of Prosecution

602

(1)

After--Filed Pending State Proceedings

603

(1)

State Proceedings Pending on Appeal

603

(1)

Kinds of Relief Barred

603

(1)

[Reserved]

604

(1)

Pullman Abstention

The Basic Doctrine

604

(2)

Applicability

606

(1)

Procedure

607

(1)

[Reserved]

608

(1)

Younger--Pullman Interaction

In General

608

(1)

[Reserved]

609

(1)

Younger Penumbras and Other Abstention Doctrines

In General

609

(1)

[Reserved]

610

(1)

Rooker--Feldma Doctrine

610

(4)

Colorado River Abstention Doctrine

614

(1)

[Reserved]

615

(1)

Burford Abstention Doctrine

615

(2)

[Reserved]

617

(1)

The Eleventh Amendment

In General

617

(18)

[Reserved]

635

(1)

Supplemental (Including ``Pendent'') Jurisdiction

In General

635

(3)

[Reserved]

638

(1)

State Court Jurisdiction

In General

638

(7)

Constitutional Tort Claims Under State Law

645

(2)

[Reserved]

647

(1)

Removal

In General

647

(7)

[Reserved]

654

(1)

Standing

In General

655

(15)

Standing After Bankruptcy Filed

670

(3)

[Reserved]

673

(1)

Mootness

In General

673

(5)

[Reserved]

678

(1)

Gap-Filling From State Law Under Section 1988: Survivorship and Limitations

42 U.S.C.A. 1988

678

(1)

Survivorship

679

(1)

Period of Limitations

680

(2)

Accrual of Period and Suspension or ``Tolling'' Circumstances

682

(5)

The Limitations ``Cut--Off'' Event

687

(4)

[Reserved]

691

(1)

Pleading

In General

691

(15)

[Reserved]

706

(1)

Federal Rule of Civil Procedure 11, As Amended---Relationship to Pleading

In General

706

(1)

The Certifications; The Papers They Initially Attach to; Subsequent Written and Oral Violations

707

(1)

The ``Improper Purpose'' Certification

708

(1)

The Law Certification

708

(1)

The Fact Certifications

709

(1)

The Target Party's ``Safe Harbor''

710

(1)

Permissive, Not Mandatory Sanctions

710

(1)

Limitations on Nature, Purpose, and Magnitude of Sanctions: The Bias Against Monetary Sanctions: The Bias Against Monetary Sanctions

711

(1)

Does the Rule Erect a Further Presumption That Monetary Sanctions Be Paid as a Penalty to the Court Rather Than as Reimbursement to the Moving Party?

712

(1)

Does the Rule Specially Restrict Monetary Recoveries by Movants in Civil Rights and Other Cases Brought Under Statutes That Provide for Fee-Shifting to Prevailing Parties?

713

(1)

Presumption of Law Firm's Joint Liability With Signer/Presenter

713

(1)

Allocation of Responsibility Between Lawyer/Law Firm and Client

714

(1)

[Reserved]

714

(1)

Discovery, Evidence, Pre-Trial Orders, Waiver of Objections, and Related Issues

Discovery in General

714

(4)

Evidence in General

718

(3)

[Reserved]

721

(1)

Pre--Trial Orders and Other Potential Waivers of Objections Before Jury Retires

721

(2)

[Reserved]

723

(1)

Summary Judgment (F.R.C.P. 56), Settlement, and Judgment as a Matter of Law Under F.R.C.P. 50(a) (``Directed Verdict'') and 50(b) (``J.N.O.V.'')

In General

723

(11)

Interlocutory Appeals of Orders Denying Summary Judgment on the Defense of Qualified Immunity

734

(1)

Settlement

735

(1)

Appeal

736

(1)

[Reserved]

737

(1)

Section 1983 Actions Against Individual and Entity Defendants---Bifurcation of Claims for Trial

In General

737

(3)

Why Bifurcation?

740

(2)

The Heller Decision

742

(4)

Post-Heller Developments on Bifurcation

746

(7)

[Reserved]

753

(1)

Class Actions

In General

753

(4)

[Reserved]

757

(1)

Claim and Issue Preclusion in Actions under Title VII and the Reconstruction Civil Rights Acts

Overview

757

(3)

The Full Faith and Credit Act and State--Court Proceedings; Section 1738

760

(2)

Claim and Issue Preclusion

762

(1)

Claim Preclusion

762

(6)

Issue Preclusion

768

(3)

State Court to Federal Court Preclusion; The Civil Rights Act of 1871

771

(8)

Title VII

779

(3)

Federal Common Law Preclusion: State Agency to Federal Court

782

(9)

[Reserved]

791

(1)

Arbitration

In General

791

(2)

[Reserved]

793

(1)

Inter--Action and Intra--Action Preclusion

In General

793

(3)

[Reserved]

796

(1)

Foreclosure of Reconstruction Act Claims by Release---Dismissal Agreements

In General

796

(4)

[Reserved]

800

(1)

The Preclusive Effect of Employment Discrimination Consent Judgments on Nonparties

In General

800

(3)

Westlaw Appendix

803

(20)

Table of Cases

823

(88)

Index

911

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Employment Discrimination Law and Practice Hornbook

Summary

Table of Contents

Supplemental Materials