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