National origin plus: subset of Hispanic/Latino people who speak Spanish/for whom Spanish is first language. Framed as DT Case: Ps treated less favorably than people of speaking national origin because prohibited from native language of national origin. (Would then have to show pretext) Accent Discrimination: In Re Rodriguez (2007): Discrimination on of foreign accent can be discrimination on basis of national origin. R: Does accent interfere with P/ee’s ability to perform duties of job? Here, question was whether comment on Hispanic speech pattern and accent was direct or circumstantial: Direct Changes proof structure from MDD to requiring eer to demonstrate that would have taken same action without discriminatory motive ADEA Age: Applies to people 40 and over Does not allow for reverse discrimination suits by younger ees Comparator need not be outside protected class, but there must be a meaningful age difference in order to draw inference of discrimination E.g. 65-year-old is replaced by 42-year-old DI or DT theory: DI available: Smith (2005) Under DI theory, eer has affirmative defense that action was due to reasonable factor other than age Here, more generous salary increases to younger police officers were due to need to make positions competitive in market As long as action was due to rxable factor, no requirement that eer utilize alternative eement practice with less impact on older ees. NO mixed motives Gross (2009) P must prove that age the for” cause of eement action “but Can do by direct or circumstantial evidence N.B. More likely to have direct evidence in this category of than in any other Burden never shifts to eer to show that would have taken same eement action regardless of age, even if P has produced evidence that age was a motivating factor in decision Age discrimination predominantly stereotype-based rather than animus/hostility based Making stereotyped judgments about people based on age is not ok, but considering actual diminished performance of older workers is ok With exception of security careers, e.g. police, firefighters, national security, ADEA prohibits mandatory retirement ages Jury trials Remedies: liquidated damages
National origin plus: subset of Hispanic/Latino people who speak Spanish/for whom Spanish is first language. Framed as DT Case: Ps treated less favorably than people of national origin because prohibited from speaking native language of national origin. (Would then have to show pretext) Accent Discrimination: In Re Rodriguez (2007): Discrimination on of foreign accent can be discrimination on basis of national origin. R: Does accent interfere with P/ee’s ability to perform duties of job? Here, question was whether comment on Hispanic speech pattern and accent was direct or circumstantial: Direct Changes proof structure from MDD to requiring eer to demonstrate that would have taken same action without discriminatory motive Age: ADEA Applies to people 40 and over Does not allow for reverse discrimination suits by younger ees Comparator need not be outside protected class, but there must be a meaningful age difference in order to draw inference of discrimination E.g. 65-year-old is replaced by 42-year-old DI or DT theory: DI available: Smith (2005) Under DI theory, eer has affirmative defense that action was due to reasonable factor other than age Here, more generous salary increases to younger police officers were due to need to make positions competitive in market As long as action was due to rxable factor, no requirement that eer utilize alternative eement practice with less impact on older ees. NO mixed motives Gross (2009) P must prove that age the “but for” cause of eement action Can do by direct or circumstantial evidence N.B. More likely to have direct evidence in this category of than in any other Burden never shifts to eer to show that would have taken same eement action regardless of age, even if P has produced evidence that age was a motivating factor in decision Age discrimination predominantly stereotype-based rather than animus/hostility based Making stereotyped judgments about people based on age is not ok, but considering actual diminished performance of older workers is ok With exception of security careers, e.g. police, firefighters, national security, ADEA prohibits mandatory retirement ages Jury trials Remedies: liquidated damages
Employment%20Discrimination%20-%20Selmi%20-%20Fall%202011.docx