Class 5 - Employment Discrimination Notes PDF

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Employment Discrimination Notes...

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Class 5

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Meritor Savings Bank, FSB v. Vinson  Quid Pro quo Focus on whether unwelcome Ginsburg’s suggestion is a way, not the way Severe & pervasive std. o According to “reasonable person under the circumstances” (general std.) o Sliding scale depending on severity & frequency 2 models 1) Quid pro quo  Meritor Case std.  Treat carried out  No affirmative defense available 2) Hostile work environment  altering work conditions “tangible employment action”  Offensive conduct in general  Conduct makes work place intimidating, hostile, etc.  No express demand for sexual conduct  Affirmative defense available (unless tangible employment action present) Co-worker v. Supervisor harassment  If employer knew or should have known about harassing conduct, then can be liability for co-worker harassment  No respondeat superior w/ co-worker  2 elements for affirmative defense of ∆’s burden o Policy, issued to employees often, training periodically, different avenues to report if perpetrator is person taking complaints, responsive/investigates, appropriate action, & no retaliation  Even if haven’t invoked statutory procedure under VII, still protected against retaliation (broad protection even if not written in)  Just need be good faith complaint, even if it is found meritless (any claims in employment law)  SC rejected notion that fear of filing claim would be justification to bypass not reporting internally (but if factors like unresponsive in past, little discipline, or others being fired previously could be justification) o Good reason other than regular fear Employers can’t ensure confidentiality during investigation Just because conduct is engaged in by someone that is a non-employee, doesn’t rid liability Title VII has not made employer guarantor for future liability if employer has taken reasonable steps to prevent  “Proportionate response” good factor  Given what was response at time of occurrence #1 (reasonable at time, reasonable responses can vary) Burlington Industries, Inc. v. Ellerth If going to rely on Ellerth defense, info. about investigation of matter are going to be discoverable & essential to defense  Can’t use as both sword and shield

Sexual orientation under Title VII  Congressional inaction & plain language  Fundamental principal of marriage is covered but not employment...