Preface
Acknowledgments
Chapter 1 INTRODUCTION
1.01 Overview of Civil Rights Act of 1991
1.02 Legislative History of 1991 Act
1.03 Title VII Concepts
1.04 ADEA Concepts
1.05 ADA Concepts
1.06 Section 1981 Concepts
1.07 Role of Section 1981a
1.08 Section 1985 Liability
1.09 Title IX
1.10 EEOC Procedures and Powers
1.11 State Agency Procedures and Powers
1.12 Suits in Court
1.13 Scope of Litigation Compared with EEOC Charges
1.14 Injunctions and Backpay
1.15 Arbitration
1.16 Relationship Between Federal and State Law
1.17 Relationship to Section 1983
1.18 Removal from State Court
1.19 Survival and Substitution
1.20 Fictitious Names
1.21 Class Actions
1.22 Liability of Related Actors
1.23 Discovery
1.24 Pretrial Orders
1.25 Parties
1.26 Constructive Dismissal
1.27 Bankruptcy
Chapter 2 42 U.S.C. SECTION 1981
2.01 Introduction
2.02 History of Section 1981
2.03 Application to Private Employment
2.04 Narrowing Supreme Court Interpretations
2.05 Effect of 1991 Act on Section 1981
2.06 Legislative History of Amendment to Section 1981
2.07 Current Scope of Section 1981
2.08 Effective Date and Retroactive Effect of Amendments to Section 1981
2.09 Section 1981 and Section 1983
2.10 Arbitrability
Chapter 3 JURY TRIALS
3.01 Overview of Jury Trial Entitlement Under 1991 Act
3.02 Statutory Provision Granting Right to Jury Trial
3.03 Legislative History on Jury Trial Question
3.04 Practice Issues Regarding Jury's Role
3.05 Judicial Control of Juries
3.06 Selecting a Jury
3.07 Storytelling
3.08 Video Presentations
3.09 Prejudicial Evidence
3.10 Opening Statements
3.11 Closing Arguments
3.12 Jury Instructions
3.13 Jury Forms
3.14 Sexual Harassment Instructions
3.15 Handling Hybrid Cases
3.16 Managing Cases with Jury and Nonjury Issues
3.17 Resubmission After Inconsistent Verdict
Chapter 4 COMPENSATORY AND PUNITIVE DAMAGES
4.01 Introduction
4.02 Exclusion of Claims Under Section 1981
4.03 Damages Caps
4.04 Qualifying for Compensatory Damages
4.05 Threshold Mental State for Punitive Damages
4.06 Constitutionality of Damages
4.07 Damages Against Individual Supervisors and Co-Employees
4.08 Taxability of Damages
4.09 Injunctions
Chapter 5 PROOF OF DISPARATE IMPACT
5.01 Synopsis
5.02 Diversity, Inclusion, and Quotas
5.03 Disparate Impact Theory
5.04 Civil Rights Act of 1991 Provisions
5.05 Legislative History of Disparate Impact Provisions
5.06 Practice Issues in Litigating Disparate Impact Cases
5.07 Proof of Business Necessity
5.08 Applicability to Age Discrimination
5.09 Using Statistics
5.10 Admissibility of Expert Testimony
5.11 AI, Machine Learning, and Automated Decision Systems
5.12 Investigative Reports
5.13 A Rock and a Hard Place
Chapter 6 PROOF OF DISPARATE TREATMENT
6.01 Introduction
6.02 Sufficiency of Evidence in Disparate Treatment Cases
6.03 Pretext
6.04 Turning a Disparate Impact Case into a Disparate Treatment Case
6.05 Retaliation Cases
6.06 Mixed-Motive Cases
6.07 Subjective Decisions
6.08 After-Acquired Evidence
6.09 National Origin Discrimination
6.10 Pattern and Practice Cases
6.11 Harassment
Chapter 7 STATUTES OF LIMITATIONS
7.01 Introduction
7.02 Title VII Time Limits
7.03 ADEA Time Limits
7.04 Special Privileges for Seniority Systems
7.05 Continuing Violation Practice Issues
7.06 Jurisdictional Effect of Time Limits
7.07 Applicability to Punitive Damages
7.08 Applicability to ADA Title II
Chapter 8 ATTORNEYS' FEES AND COSTS
8.01 Introduction
8.02 Development of Fee Shifting Provisions
8.03 Practice Issues in Fee Awards
8.04 Expert Fee Awards
Chapter 9 FINALITY: PRECLUSIVE EFFECT AND SETTLEMENTS
9.01 Introduction
9.02 Res Judicata in Employment Cases
9.03 Settlement Agreements and Consent Decrees
9.04 Collateral Attack
9.05 Collateral Attack Practice Issues
9.06 Relationship Between Due Process and Denial of Intervention
9.07 Allowing Intervention
9.08 Application of Section 703(n)
9.09 Termination Agreements Under ADEA
Chapter 10 SPECIAL PROBLEMS IN SEX DISCRIMINATION
10.01 Introduction
10.02 Sexual Harassment and Title VII's Injury Requirement
10.03 Vicarious Liability for Sexual Harassment
10.04 Sexual Orientation Discrimination
10.05 Retirement Benefits
10.06 Pregnancy Discrimination
10.07 Discrimination Based on Stereotype
Chapter 11 SPECIAL PROBLEMS IN DISABILITY DISCRIMINATION
11.01 Introduction
11.02 Basic Duties
11.03 Relationship Between ADA and Other Statutes
11.04 Causation: Conduct or Disability?
11.05 Reasonable Accommodation
11.06 Reasonable Accommodation and Being Qualified
11.07 Employer Defenses
11.08 Transfers
11.09 Retaliation for Asserting ADA Rights
11.10 Enforcement
11.11 Statutory Definition of Disability
11.12 Disability and Mitigation
11.13 Employment Discrimination Under Titles II and III of the ADA
Chapter 12 INTERNATIONAL ISSUES
12.01 Introduction
12.02 Basics of Jurisdiction
12.03 Arabian American Oil and the Congressional Response
12.04 American Control of Foreign Operation
12.05 Foreign Laws Defense
12.06 Foreign Nationals Working Abroad
12.07 Foreign Employers
12.08 Foreign Governments and Instrumentalities as Defendants
12.09 Personal Jurisdiction
12.10 Enforcement of Judgments
12.11 Forum Selection and Choice of Law Clauses
12.12 Alien Tort Statute
12.13 Service of Process
12.14 Discrimination Based on Nationality
Chapter 13 PUBLIC EMPLOYEES
13.01 Introduction
13.02 Government Entities as Defendants
13.03 Liability of States to Suit in Federal Court
13.04 Relationship Between Title VII and Section 1983
13.05 First Amendment Claims
13.06 Qualified Immunity
Chapter 14 FAMILY AND MEDICAL LEAVE ACT
14.01 Introduction
14.02 Coverage
14.03 Leave
14.04 Notice to Employer
14.05 Preservation of Health Benefits
14.06 Right to Return to Job or Equivalent Position
14.07 Interference and Retaliation
14.08 Disclosure of Confidential Information
14.09 Department of Labor Role
14.10 Waivers and Releases
14.11 Civil Actions and Remedies
14.12 ADA and FMLA
14.13 Public Policy Tort for Violating FMLA
Chapter 15 INDEPENDENT CONTRACTORS
15.01 Introduction
15.02 Most Employment Law Applies Only to “Employees”
15.03 Definitions of Independent Contractors and Employees
15.04 Subcontractors as an Analogy
15.05 Sources of Controversy
15.06 Uber Drivers
15.07 Federal Express Ground Delivery Drivers
15.08 Consolidating the Factors
15.09 The Future
15.10 Protecting Independent Contractors
Chapter 16 DISCRIMINATION BASED ON IMMIGRATION STATUS
16.01 Introduction
16.02 Between a Rock and a Hard Place
16.03 Obligation Not to Hire Knowingly and to Verify Status
16.04 Obligation Not to Discriminate
16.05 Retaliation
16.06 Indemnity Bonds
16.07 Discovering Immigration Status
16.08 Agency Responsibilities
16.09 Enforcement Process
16.10 Preemption
Chapter 17 The COVID Epidemic
17.01 Introduction
17.02 Effect on Employment Legal Relationship
17.03 Worker Adjustment and Retraining Notification Act
17.04 Family and Medical Leave Act
17.05 Employee Retirement Income Security Act
17.06 Occupational Safety and Health Administration
17.07 National Labor Relations Act
17.08 Common-Law Wrongful Dismissal
17.09 Whistleblower Statutes
17.10 Being Wrong About the Law
17.11 Discrimination Statutes
17.12 Americans with Disabilities Act
17.13 Bankruptcy
17.14 Public Employees
Table of Statutes
Table of Cases
Index
