Basic Differences Among Employment Discrimination Statutes

1. Which type of employer is covered?

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
4. Prerequisites to a lawsuit
  • 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
7. Limitations periods are quite different
  • All are independent
  • So you can be waiting for EEOC to process and still need to file other complaints in a timely manner
8. Jury trials?
  • 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
9. Type of defendant
  • 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
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