Employment Discrimination Law and Practice Hornbook

by Lewis, Harold S.

• ISBN13: 9780314150127
• ISBN10: 0314150129
• Edition: 2nd
• Format: Hardcover
• Copyright: 2004-09-30
• Publisher: West Group

Summary

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.

Table of Contents

Preface	v
Acknowledgements	ix
WESTLAW Overview	xi
An Introduction to Title VII of the 1964 Civil Rights Act and the Civil Rights Act of 1991
An Overview	1	(9)
Reconstruction-Era Civil Rights Legislation Affecting Employment Discriminatin
The Civil Rights Acts of 1866, 1870, and 1871
In General	10	(1)
Section 1981	11	(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	28	(4)
[Reserved]	32	(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	32	(1)
Claims Arising From Acts of Discrimination on or Before Nov. 21, 1991	33	(1)
Claims Arising From Intentional Race Discrimination After the Effective Date of the 1991 Act	34	(2)
The Practical Significance of the Jett-Related Language in the Civil Rights Act of 1991	36	(2)
[Reserved]	38	(1)
Recent Procedural Limitations on the Reconstruction Civil Rights Acts
In General	38	(1)
Expansion and Contraction: The Supreme Court's Dialectic Approach to Interpreting the Reconstruction Civil Rights Acts	38	(4)
Title VII of the 1964 Civil Rights Act: Coverage, Prohibited Grounds of Discrimination, Specially Treated Practices, and Defenses
Title VII in General	42	(3)
Coverage
Protection for Individuals	45	(5)
Employers Governed by Title VII/ADEA	50	(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	57	(8)
Religious Employers: Coverage, Exemptions, Defenses	65	(2)
``Purely'' Religious Organizations	67	(2)
Religiously Affiliated Educational Institutions	69	(2)
The ``BFOQ'' Affirmative Defense Based on Religion	71	(1)
[Reserved]	72	(1)
Constitutional Problems Surrounding Regulation of Religious Discrimination
In General	72	(3)
Title VII's Basic Substantive Prohibitions
In General	75	(2)
[Reserved]	77	(1)
The Meaning of Discrimination Because of ``Race,'' ``Color,'' ``National Origin,'' ``Sex,'' and ``Religion''
The Meaning of ``Race''	78	(2)
Accent or Language Rules as National Origin Discrimination	80	(3)
Discrimination Based on Sex	83	(7)
Sexual Harassment	90	(8)
Quid Pro Quo (Tangible Benefit) Harassment: Conduct Constituting	98	(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