Slacker Review - Prelim I - -1- Damages Prior to 1991:...

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- 1 - Damages - Prior to 1991: equitable relief only (back pay & reinstatement) - Civil Rights Act of 1991: added punitive and compensatory o Punitive and compensatory…Unavailable in unintentional discriminatory cases – intended to punish employer o Must prove that ER was reckless OR malicious Misc. Title VII Issues: Damages - Not reckless or malicious o 1. if ER was unaware that the conduct was against the law o 2. bona fide occupational qualification (BFOQ) o 3. Novel area of the law - Reckless/Malicious BUT ER can assert this defense: o ER made a good faith effort to comply with the law Intentional Discrimination - Burdine/Hicks Model o STEP ONE: PLAINTIFF: proves prima facie case Protected class Minimally qualified and applied Adverse employment action (fired, not hired, etc.) Position remained open and was ultimately filled by a person not in the protected class (hiring case) OR similarly situated persons treated differently (firing case) o STEP TWO: then, DEFENDANT: Articulates (produces) a (legitimate) non-discriminatory reason That’s it! Defendant doesn’t PROVE anything. o STEP THREE: Finally, PLAINTIFF: PROVES: Pretext PLUS some evidence of discrimination Or, if just pretext, jury may infer discrimination - Mixed Motives Model (same first step as Burdine/Hicks Model) o Plaintiff PROVES that discrimination was a motivating factor in the adverse employment action o Then, defendant PROVES (not articulate/produce) that if would have made the dame decision regardless of plaintiff’s race, sex, etc. If defendant doesn’t prove, then plaintiff wins - Civil Rights Act of 1991
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- 2 - o If plaintiff proves that discrimination was a motivating factor (the first step) then a judge can award (under Mixed Motives Model): Attorney’s fees Costs Declaratory Judgment (ER was wrong) *Plaintiff always wants Mixed Motives Model, because even if they lose, they can still receive attorney’s fees or some other award *If Mixed Motives Model is used, defendant will want to simply settle the case - Bona Fide Occupational Qualification (BFOQ)
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Slacker Review - Prelim I - -1- Damages Prior to 1991:...

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