2. Size of employer
3. Available of BFOQ defense: “bona fide occupational qualification”
- Such as only women can be wet nurses
- Fight over prison guards on this point
- For Title VII, must first file with EEOC
5. “Reasonable accommodation” provisions
- As in the ADA
6. Does statute ban discriminator effect? (All ban intentional discrimination.)
- Title VII: yes
- Title VI: no, but gov’t has regs to ban such practices
- ADA: yes
- ADEA: yes, but different than Title VII
- FMLA: yes
- Constitution: no, requires intent
- All are independent
- So you can be waiting for EEOC to process and still need to file other complaints in a timely manner
- Now most trials go to a jury, but prior to 1991 there were no juries under Section 1981
- Law vs. Equity
- No jury in equity
- Back pay viewed as equity
- Also, need to frame as equity (no jury) to get a class action
- Punitive damage issues
- Section 1983, lawsuits to enforce Constitution vs. state/local governments: special rules apply
- Sometimes different rules for individual vs. state/local defendant
- 11th Amendment limites suits against states
- “Quirky” interactions