Title 7: Procedure & Remedy

Proced.: 706)c, e, & f

  1. X Line
    1. Filing Charge w/EEOC When C/A Accrue
      1. Accruing C/A
        1. Fed, when ee notified of discrim. / term., not last day of work
        2. CA
          1. Last day of work / actual term.
          2. For tort, actual injury / damage
      2. Deferral state, then 300 days & give state 1st chance
      3. Nondeferral state, then 180 days 2 file
        1. Miss.
        2. Alabama
        3. TX
        4. Arkansas
        5. LA
        6. Virg.
      4. Must file 2 sue
      5. Can amend charge if same course of axn rel's back 2 charge, e.g. retaliation
    2. Then 60 Days of Waiting Per. w/State Agency (Deferral)
      1. Work share agmts, then fed & state would file w/each other auto.
      2. If no work share agmt, then each agencies would need 2 waive waiting per. reqt
    3. EEOC w/Charge: 180 Days 2 Do Something
      1. If really good case, can get rt. 2 sue letter before 180 days up
    4. Rt 2 Sue Letter
      1. EEOC issues after investig. / P asks
      2. Then 90 days 2 file suit w/fed. ct.
    5. Equitable Toll
      1. Cts more lenient 2 toll filing charge per. than filing suit per.
      2. Ct won't give vague sympathy 2 partic. litig.
  2. Atty Apptment: 706)f
    1. Ct May Appt But No $ Approp'ed 4 It
    2. Bradshaw Panel: 9th Circ.
      1. Factors 2 consid. appt'ing
        1. P's fin.
        2. P's effort 2 find atty on own
        3. P's merits & likelihood
        4. Willing atty
  3. Cont.'ing Viol.
    1. Encompass All Prior Viol's
      1. For sex harassment, can bring suit 4 entire conduct @ pt. rsbl person would know it was suff. hostility 4 C/A 2 begin
    2. Factors
      1. Same type of discrim.
      2. Freq. of recurring acts
      3. Degree of permanence
  4. Rel. Btwn EEOC Charge & Suit
    1. EEOC
      1. Weak w/no legal effect
      2. Can litig. & sue on behalf of ee's
      3. Enforcement: 706)b
        1. Notice of charge 2 er w/in 10 days after charge filed
        2. Investig. & try 2 conciliate but not req'ed
          1. If investig., P gets free access
        3. Dismiss & notify if unrsbl charge
    2. Charge Should Support Later Suit
      1. Broad Stand. in Most Circ's
        1. Suit anything rsbly rel'ed 2 / grow out of charge (9th) /
        2. Any possible investig. of charge
      2. Narrow Stand.: 7th Circ.
        1. Like / rel'ed 2 charge 2 claims firmly encompassed w/in charge
  5. Res Judicata, Collateral Estoppel, & Mandatory Arbitration (Arb.)
    1. Res Judicata & Collateral Estoppel 4 State Ct Jgmts
      1. Res judicata would B given 2 state agency's dec.
      2. If merit hrg, then collateral estoppel
      3. Should join all C/A's w/parallel & overlapping remedies if go on any hrg b/c could B precl'ed later
      4. If weren't a party before, then can relitig.
    2. Arb. & Title 7
      1. Could waive rt 2 file suit by arb.
      2. FAA
        1. Not apply 2 empl. K
        2. Interstate goods
        3. Comm'l arb. dec.'s
      3. AAA
        1. Bar stt. C/a
        2. Prov's all the relief available in ct. b/c awards damages
      4. Enforcement of arb. dep's on
        1. Ee's consent
        2. Whether compelled in order 2 get a job
        3. Knowing agmt

Remedies: 706)g & 1991)a

  1. Abuse of Discretion Stand.
  2. Judge v. Jury
    1. Rt 2 Jury in Legal Damage Cases
      1. Dec. all fact & damages
    2. Judge Dec. Backpay
  3. Legal
    1. Damages
      1. Compensatory
      2. Punitive
      3. Cap On Both 4 Non-race Discrim.
        1. Race damages can B from 1981 so cap of $300k if 500+ ee's
    2. Only 4 Disp. Treatment (1991)a)
  4. Equitable
    1. Monetary
      1. Backpay
        1. Accrue not more than 2 yrs. prior 2 filing charge w/EEOC
        2. Must look 4 work w/rsbl diligence & subtract amt earned w/rsbl diligence interim from backpay
        3. Presume ee entitled 2 backpay b/c purpose of Title 7 2 make people whole
        4. Deny only if
          1. Not frustrate central purpose of Title 7 +
          2. Ct articulates rsn 4 denying
        5. Can calc. by tracking work history of those who were hired instead but all in ct's discretion
        6. Toll er's liab. by offering P exact same job if it's
          1. Unconditional offer so P not give up rt 2 suit
          2. No spec. circ's where P not req'ed 2 take job
      2. Fringe benefits
    2. Injunction
      1. Cease & desist
      2. Getting Jobs Back
        1. Retroactive sen.
          1. Reqts
            1. Show qualified then & now
            2. Hired now
          2. Deny only if not gen'ly frustrate central purpose of Title 7
          3. Date when discrim. & after charge is filed
        2. Reinstatement
          1. Can't instate @ higher level w/o qualif.
          2. When vacancy b/c can't bump innocent incumbents
            1. Innocent if had jobs before liab.
            2. Non-innocent if after liab. & reinstatement order
          3. Bumping incumbents
            1. Non-innocent can B bumped
            2. Prof'l jobs where limited # of vacancy but rare
          4. Can't reinstate + front pay
          5. Ct's dif. treatment of white collar v. blue
            1. Tendency 2 ok not going back 2 work 4 white collar if pers'al animosity but not 4 blue collars
        3. Preferential hire list + front pay
          1. If can't get reinstated & until actually getting a job
          2. Same sort of calc. 4 front pay as back pay
          3. P can't choose reinstatement v. preferential hire list
        4. After acq'ed evid.: Er's aff. defense 4 reinstate & preferential
          1. Ee would've been fire b/c ee's wrong so severe
          2. Then only do back pay up 2 X of wrongdoing
      3. Atty's fee: 706)k
        1. Same as 42 USC 1988
          1. Ct in its discretion may allow prevailing party other than US rsbl atty's fee as part of cost
        2. Reqts
          1. Prevail on sig. issue of case
          2. Det. fee by # of rsbl hrs on issues prevailed on
        3. Prevailing Party
          1. If P, strong assumption
          2. If D, then get it if less than bad faith
            1. P's suit is unrsbl, frivolous, groundless, vex, /
            2. P cont'ed 2 litig. after it was clear it was unrsbl, etc.
      4. Aff axn / hiring plans: Exec. Order 11246
        1. Prog./plan consid.'s race, gender, ethnicity, / nat'l origin in dec.
          1. Rarely given by cts
        2. Exec Order
          1. People entering into K of $50k+ w/fed govt +
          2. Have 50 / more ee's
          3. Must have written aff. axn plan
          4. Applies only 2 empl.
          5. Analyze work force & have utilization analysis
            1. Compare ee's w/qualified work force
        3. Beneficiary of aff axn
          1. Current doc'ed underrep.
          2. Qualified 4 job
        4. Reqt's 4 aff axn as remedy: 706)g
          1. Find persistent, egregious discrim.
            1. O'Connor wants firm basis
          2. Narrowly tailored plan
            1. No trammel whites, men, / nonV's rts (no abs. bar)
            2. Temp. so reach / attain goal, not maintain goal
              1. Quota is illegal
            3. Flexible & modified over X
        5. Vol. race consc. aff. plan
          1. Ok 4 manifest imbal. 4 trad'ly seg'ed jobs b/c Title 7 not disallow it

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May 4, 1997

Ms. Haeji Hong

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