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D

E

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TREATISE INDEX "A"

Table of contents for this page
Abstention
Abuse of discretion standard
ADA
ADEA
Administrative charge
Admissibility of evidence
Adverse employment action prong in discrimination (not retaliation) cases
Adverse employment action prong in retaliation cases
Advice of counsel defense
Affirmative action
Affirmative defense
After-acquired evidence
Age Discrimination in Employment Act (ADEA)
Agency
AIDS / HIV positive
Alcohol addiction or alcoholism
Allergies
Americans with Disabilities Act (ADA)
Answer
Anxiety / stress disorder
Arbitration agreements
Arizona
Arkansas
Armed forces
Associational discrimination claims
Asthma
Attention Deficit Disorder
Attorney - client relationship
Attorneys fees and costs
Aviation and Transportation Security Act

 

Abstention

• Abstention based on pending state court litigation - 24.141

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Abuse of discretion standard

• Definition of abuse of discretion - 3.110

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ADA

• See, "Americans with Disabilities Act" (this index)

Return to Top

ADEA

• See, "Age Discrimination in Employment Act" (this index)

Return to Top

Administrative charge

• See, "Exhaustion of administrative remedies" (this index)

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Admissibility of evidence

• See, "Evidence" (this index)

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Adverse employment action prong in discrimination (not retaliation) cases

• Adverse employment action prong - Introduction - 4.560

• Constructive demotion - 4.563.23

• Definition of adverse employment action - 4.561

  • Whether definition is the same under 42 U.S.C. § 1983? - 4.561.20

• Delay in transfer - 4.563.11

• Demotion / lateral transfer or reassignment - 4.563.20

  • Transfer to different shift - 4.563.22

  • Transfer to new location - 4.563.21   

• Denial of bonus - 4.562.20

• Denial of opportunity to temporarily be "in charge" - 4.564.30

• Denial of pay raise - 4.562.10

• Denial of tenure - 4.563.30

• Denial of training - 4.564.10

  • "Denial of training" is an adverse action under the ADA - 13.126.10

• Denial of transfer - 4.563.10

• Failure to provide reasonable accommodation under the ADA - 13.126

• Failure to offer severance package - 4.562.60

• Failure to reimburse expenses - 4.562.40

• Leave time - 4.562.50

• Minimal loss of pay - 4.562.30

• Negative evaluations - 4.565.10

• Oral or written reprimand (or counseling) - 4.565.40

• Performance improvement plan - 4.565.50

• Suspension or administrative leave with pay - 4.565.20

• Suspension or administrative leave without pay - 4.565.30

• Termination, but reinstatement with back pay - 4.566.10

• Unfulfilled threats - 4.564.20

• What if adverse employment action is rescinded? - 4.561.10

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Adverse employment action prong in retaliation cases

• See, "Retaliation claims" (this index)

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Advice of counsel defense

• Advice of counsel defense - 9.770

• Governmental entity, not individual defendant, holds attorney/client privilege - 9.771

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Affirmative action

• Affirmative action - 5.100

• Affirmative action based on operational needs - 5.180

• Affirmative action claims under the Equal Protection Clause - 17.641

• Intermediate scrutiny - 5.150

• Narrowly tailored remedy - 5.120

• Response to past discrimination - 5.110

• Statistics, use of statistics to establish prima facie case - 5.171

• Whether affirmative action plan is remedial? - 5.130

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Affirmative defense

• See, "Answer" (this page)

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After-acquired evidence

• After-acquired evidence (as affecting the calculation of damages) - 21.932

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Age Discrimination in Employment Act (ADEA)

• Applicability of McDonnell Douglas to the ADEA - 4.412.10

• Bona fide occupational qualification

  • Statutory authority - 12.271

• Bona fide seniority system

  • Statutory authority - 12.281

• Comments related to performance or age as evidence of age discrimination - 12.222

  • Generic statements as evidence of age discrimination - 12.225

• Create job, no duty to create job opening for older worker - 12.251

• "Direct evidence," whether direct evidence is still required in ADEA mixed-motive actions - 4.221

• Disparate impact, whether disparate impact claims are available - 5.211

  • Supreme Court's analysis - 12.241

  • Ward's Cove - 12.242

• Eleventh Amendment immunity (see, this index)

• Employee benefits plans

  • Cases interpreting statute - 12.292

  • Statutory authority - 12.291

• Employee, definition of under the ADEA - 1.220

  • "Employee" interpreted the same under the ADEA and Title VII - 1.221

• Employer, definition of under the ADEA - 2.211

• Employer's concern about potential age discrimination claim (as evidence of age discrimination) - 12.224

• "Exhaustion of administrative remedies" (this index)

• Extra-territorial, whether extra-territorial U.S. citizen is protected by the ADEA - 1.908.12

• Factors than may correlate with age (Hazen Paper) - 12.221

  • If some factors correlate with age, but another factor is age, then Hazen Paper does not apply - 12.221.10

• Federal employee, alternative routes for bringing an ADEA claim - 6.541

• Fifth Amendment

  • Whether ADEA preempts Fifth Amendment claim of federal employee - 17.511.10

  • Whether ADEA preempts Fifth Amendment claim of non-federal employee - 17.511.20

• Foreign employer and/or foreign employment - Applicability of the ADEA - 2.610

• Former employee as a plaintiff under the ADEA - 1.520

• Foreign Service employees and mandatory retirement - 24.124

• Harassment claim, whether harassment claim is cognizable under the ADEA? - 19.511

  • See, Hostile Work Environment (this index)

• Hazen Paper (factors than may correlate with age) - 12.221

  • If some factors correlate with age, but another factor is age, then Hazen Paper does not apply - 12.221.10

• Individual liability under the ADEA - 2.111

• Inference of no discrimination, if plaintiff is older at time of hire, then that creates inference of no discrimination - 12.256

• Interpretative guidance, other anti-discrimination laws as interpretative guidance - 12.140

• Mandatory age requirements for police and firemen - 12.233

• Mandatory entry age - 12.231

• Mandatory retirement age - FAA - pilots - 12.232.10

• Mandatory retirement - Foreign Service employees - 24.124

• McDonnell Douglas, application of McDonnell Douglas burden-shifting analysis - 12.160

• Mixed-motive is still bar to liability for ADEA claims - 4.231

• Older Workers Benefit Protection Act (see this index)

• Older Workers Benefit Protection Act does not provide for a cause of action separate from the ADEA - 12.253

• Prima facie case, generic ADEA - 4.521

• Reduction in force

  • Comparators, in a company-wide RIF, plaintiff's comparators are not limited to persons who have the same supervisor - 12.264

  • Good employees may be discharged during a RIF - 12.263.10

  • Prima facie case - 12.261

  • Proving the fourth prong of prima facie case - 12.262

  • Redistribution of duties to younger employees - 12.263.30

  • Reliance on most recent employee evaluations - 12.263.20

  • Sufficient evidence of age discrimination - 12.263

• Retaliation claims (see, this index)

• Retirement

  • Early retirement program based on age may violate ADEA - 12.255

  • Inquiry into employee's retirement plans (as evidence of discrimination) - 12.223.10

  • Offer of early retirement (as evidence of discrimination) - 12.223.30

  • Offer of early retirement to employees besides the plaintiff (as evidence of discrimination) - 12.223.40

  • Retirement plan benefits that are less favorable for age-based retirees than disability-based retirees may violate the ADEA -12.254

  • Suggestion of retirement (as evidence of discrimination) - 12.223.20

• Settlement agreements

  • See, Older Workers Benefit Protection Act (this index)

• Statute of limitations for filing an administrative charge

  • See, "Exhaustion of administrative remedies" (this index)

• Statute of limitations for filing a lawsuit

  • Statute of limitations (for non-federal employee) - 9.121.10

  • Statute of limitations where federal employee pursues EEOC remedies before filing ADEA action - 9.121.20

  • Statute of limitations where federal employee brings direct ADEA action - 9.121.30

• Substantially younger - 12.210

  • Court considers age of the "permanent replacement" - 12.213

  • Employer's knowledge of age discrepancy - 12.211

  • Older temporary replacement chosen as subterfuge - 12.212

• Whether "direct evidence" is still required in ADEA mixed-motive actions - 4.221

• Wirtz Report, interpretative guidance based on Wirtz Report, 12.150

• Younger workers, whether the ADEA protects younger workers from discrimination in favor of older workers - 12.252

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Agency

• Agent of employer - 2.250

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AIDS / HIV positive

• AIDS / HIV positive (cases addressing particular medical impairments) - 13.251.01

• HIV-positive as a direct threat to health or safety under the ADA - 13.364.34

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Alcohol addiction or alcoholism

• Alcohol addiction or alcoholism (cases addressing particular medical impairments) - 13.251.02

• Alcohol as a direct threat to health or safety under the ADA - 13.364.31

• Decisions by circuit regarding drug and alcohol use in ADA actions - 13.830

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Allergies

• Allergies (cases addressing particular medical impairments) - 13.251.03

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Americans with Disabilities Act (ADA)

• Affirmative action requirements - 13.111.30

• Applicability of McDonnell Douglas to the ADA - 4.412.20

• Associational claims - 13.150

  • Statutory authority for associational claims - 13.151

  • Associational discrimination prima facie case - 13.152

• "Because of disability" claims (see this index)

• "Business necessity defense" (scroll down to "Employer's defenses" under this heading)

• Conditional offer of employment

  • Basis for withdrawing a conditional offer of employment - 13.542

• Corrective measures, see "Disability" (this index)

• Covered entity - 2.300

  • Definition of covered entity - 2.310

• "Direct threat defense" (scroll down to "Employer's defenses" under this heading)

• Disability (see this index)

• Disability benefits

  • Whether plaintiff must be a "qualified individual with a disability" in order to be a claim for disability benefits - 13.631

  • Whether providing greater benefits for physical disabilities as opposed to mental disabilities violates the ADA or Rehabilitation Act - 13.632

  • Whether providing coverage for some types of transplants, but not others, violates the ADA - 13.633

• Drugs and alcohol

  • Decisions by circuit - 13.830

  • Drugs and alcohol in the workplace - 13.822

  • Statutory authority regarding use of drugs and alcohol - 13.810

  • "Qualified individual" with respect to someone using illegal drugs - 13.821

• Drug testing

  • Drug testing not a medical exam - 13.823

  • Drug testing and DOT regulations - 13.823.10

• EEOC's ADA regulations are not binding, but . . . - 13.117

• Eleventh Amendment immunity (see, this index)

• Employee, definition of under the ADA - 1.210

• Employer, definition of under the ADA - 2.212

• Employer's defenses

  • Business necessity

    • Cases addressing business necessity defense - 13.363.20

    • Proving business necessity defense - 13.363.10

      • Employer has burden of proof - 13.363.11

  • Direct threat

    • Cases

      • Alcohol - 13.364.31

      • Diabetic - 13.364.32

      • Heart condition - 13.364.33

      • HIV-positive - 13.364.34

      • Mental problems - 13.364.35

      • Off-duty conduct - 13.364.36

    • Direct threat in the context of associational discrimination claims - 13.364.40

    • Proving direct threat - 13.364.10

      • Burden of proof - 13.364.11

      • Direct threat means threat to individuals or others - 13.364.20

      • Employer entitled to obtain medical exam - 13.364.13

      • Individualized assessment - 13.364.12

  • Qualification standards, tests or selection criteria - 13.363

  • Statutory authority for employer's defenses - 13.361

• Essential job functions (this index)

• "Exhaustion of administrative remedies" (this index)

• Extra-territorial, whether extra-territorial U.S. citizen is protected by the ADA - 1.908.11

• Federal employees

  • Interaction with Federal Employee's Compensation Act - 13.991.10

• Foreign employer and/or foreign employment - Applicability of the ADA - 2.620

• Former employee as a plaintiff under the ADA - 1.510

• 42 U.S.C. § 1983, ADA and Rehabilitation Act claims may not be brought under 42 U.S.C. § 1983 - 17.164

• Harassment based on disability (cognizability of claim) - 19.520

• Individual liability under the ADA - 2.112

  • No individual liability under 42 U.S.C. § 1983 - 17.211

• Interactive process (see this index)

• Last Chance Agreements - 13.910

• Major life activities (see this index)

• Medical advice (reliance on by employer) - 13.116

• Medical inquiries by employer or prospective employer

  • Drug testing not a medical exam - 13.823

  • Employee entrance examinations

    • Basis for withdrawing a conditional offer of employment - 13.542

    • Confidentiality requirements related to employee entrance examinations - 13.571

  • Fitness for duty exams or inquiries of current employees - 13.550

    • Confidentiality requirements related to fitness for duty exams of current employees - 13.572

    • Determination of business necessity for a fitness for duty exam - 13.552

    • Does employee or employer pay for fitness for duty exam? - 13.554

    • Drug tests of former substance abusers - 13.553

    • Former employees, fitness for duty exams or inquiries of - 13.560

    • Fourth Amendment, if employer is a governmental entity, is the Fourth Amendment implicated in a fitness for duty exam? - 13.555

    • Mental or physical exam as precondition of returning to work - 13.552.10

  • Mental health examinations, permissibility of - 13.541

  • Statute on medical examinations and inquiries - 13.510

  • Whether MMPI is a medical exam - 13.531

  • Whether person must be "disabled" in order to bring a claim for an improper medical inquiry - 13.521

  • Whether person must be able to prove cognizable injury - 13.522

• Misconduct, whether disability-related misconduct is protected - 13.170

• Pattern or practice suits, statutory authority for such suits under the ADA - 5.321

• Pleading requirements in an ADA action - 7.118.20

• Qualified individual with a disability (see this index)

• Reasonable accommodation (see this index)

• Retaliation claims (see, this index)

• Similarities and differences between the ADA and the Rehabilitation Act - 13.111

• Stereotypes (cannot rely on) - 13.115

• Time limitations

  • See, "Exhaustion of administrative remedies" (regarding time for bringing administrative charge)

  • See, "ADA, length of filing period - 9.122" (regarding time to file a lawsuit)

• Title II, does Title II of ADA apply to employment claims? - 13.112.20

• Title VII as precedent for ADA cases - 13.112.10

• Undue hardship (see "reasonable accommodation" this index)

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Answer

• Compulsory counterclaim - 7.130

• Inconsistent defenses - 7.122

• Mixed motive defense (whether it must be pled as an affirmative defense) - 7.121.10

• "Offer of reasonable accommodation" (whether it must be pled as an affirmative defense) - 7.121.20

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Anxiety / stress disorder

• Anxiety or stress disorder (cases addressing particular medical impairments) - 13.251.04

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Arbitration agreements

• Appeal, whether decision compelling arbitration is appealable - 8.114.60

• Arbitration agreement applies to administrative claims already pending when agreement goes into effect - 8.191

• CBA, standard for waiver of statutorily protected rights in collective bargaining agreement - 8.114.30

• Compelling arbitration, when can a party compel arbitration? - 8.114.40

• EEOC's right to seek judicial relief on behalf of employee notwithstanding arbitration agreement - 8.170

• Enforceability of arbitration agreement

  • General principles - 8.151

  • Illusory agreement, whether employer's right to modify or terminate agreement makes it illusory - 8.151.40

  • Individualized assessment - 8.151.10

  • Mandatory arbitration agreements are enforceable - 8.151.30

  • Procedural unconscionability - 8.152

  • Severable, whether unenforceable clause is severable - 8.154

  • Substantive rights, agreement cannot require that employee forego substantive rights - 8.151.20

  • Substantive unconscionability - 8.153

  • Unconscionable, whether certain provisions are unconscionable - 8.160

• Existence of arbitration agreement

  • Acceptance by employee based on continuing to work - 8.142.20

  • ADA claims (whether employee knowingly entered into arbitration agreement) - 8.142.31

  • Employee's duty to understand agreement before signing - 8.142.32

  • Illusory offer, whether employer's offer is illusory - 8.141.10

  • Notice, whether employee was provided sufficient notice of agreement - 8.142.10

  • Whether agreement must be in writing? - 8.143

• Federal Arbitration Act

  • Scope of Federal Arbitration Act - 8.113

    • ADA, whether FAA applies to ADA claims - 8.113.31

    • Exclusion for transportation workers - 8.113.10

      • Who is a transportation worker? - 8.113.20

• Federal policy favors arbitration - 8.114.10

• How soon must arbitration be sought? - 8.114.20

• Scope of arbitration agreement, is determination made by court or arbitrator? - 8.121

• Standard of review of arbitration decision - 8.112

• State contract law controls - 8.130

• Stay, when motion to compel arbitration is granted, should lawsuit be dismissed or stayed? - 8.114.50

• Subject matter jurisdiction - 8.111

• Waiver of right to challenge biased arbitrator - 8.181

• Waiver of right to contest submission to arbitration - 8.180

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Arizona

• Interaction between federal employment discrimination law and Arizona state law - 23.004

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Arkansas

• Interaction between federal employment discrimination law and Arkansas state law - 23.005

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Armed forces

• Whether a member of the Armed Forces can bring suit - 1.906

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Associational discrimination claims

• Direct threat to health or safety under the ADA in the context of associational discrimination claims - 13.364.40

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Asthma

• Asthma (cases addressing particular medical impairments) - 13.251.05

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Attention Deficit Disorder

• Attention Deficit Disorder (cases addressing particular medical impairments) - 13.251.06

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Attorney - client relationship

• Advice of counsel defense - 9.770

• Attorney's authority to settle on behalf of client - 8.215

  • Burden of proof - 8.215.10

• Governmental entity, not individual defendant, holds attorney/client privilege - 9.771

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Attorneys fees and costs

• ADA

  • Statutory authority for fees under the ADA - 22.142

• ADEA

  • Federal employee's entitlement to fees under the ADEA - 22.141.20

  • Standard of awarding fees to employer under the ADEA - 22.141.30

  • Statutory authority for fees under the ADEA - 22.141

  • Whether Title VII's "prevailing party" analysis applies - 22.141.10

• Apportioning fees, standard for apportioning fees against multiple defendants - 22.165

• Burden of proof - 22.110

• Calculation of fees on behalf of employee

  • Comparison between ad damnum and amount actually awarded - 22.233.60

  • Contingency fee (as an enhancement factor) - 22.239.20

  • Degree of success or "results obtained" - 22.233

  • Factors considered in lodestar - 22.212

  • General principles - 22.210

  • Interplay between court-awarded fees and contingent fees - 22.250

  • Lodestar method preferred - 22.211

  • Multiplier for exceptional success - 22.238

  • Proportionality of fees to the award to the plaintiff - 22.239.30

  • Victory on few claims and award of limited relief - 22.233.20

  • Victory on most claims and award of limited, but not unsubstantial, relief - 22.233.50

  • Victory on most claims and award of substantial relief - 22.233.30

  • Victory on most claims, but no award of significant relief - 22.233.40

  • Whether successful claims and unsuccessful claims are related or severable? - 22.233.10

• Catalyst theory has been rejected - 22.220

• Costs

  • Burden of proof - 22.411

  • Copying costs - 22.430.01

  • Denial of costs, court must provide a valid reason for not awarding costs to a prevailing party - 22.416

  • Denial of costs, reasons to deny costs to prevailing party - 22.416.10

  • Deposition costs - 22.430.02

  • Employer can recover costs even though lawsuit was not frivolous - 22.411.10

  • Exhibit costs - 22.430.03

  • Expert witness fees - 22.430.04

  • Interplay between legal authority for awarding costs - 22.414

  • Investigative fees - 22.430.05

  • Legal authority for awarding costs - Federal Rule of Civil Procedure 54(d) - 22.413.20

    • Both sides cannot be prevailing party - 22.423.12

    • Nominal damages is sufficient for prevailing party status under Rule 54(d) - 22.423.11

    • Prevailing party under Rule 54(d) - 22.423.10

    • Title VII, applies to Title VII cases - 22.423.20

  • Legal authority for awarding costs - 42 U.S.C. § 1988 - 22.413.30

  • Legal authority for awarding costs - 28 U.S.C. § 1920 - 22.413.10

    • Cases interpreting 28 U.S.C. § 1920 - 22.422

  • Legal authority for awarding costs - Title VII - 22.424

  • Legal research costs - 22.430.06

  • Mediation expenses - 22.430.07

  • Service of process fees - 22.430.08

  • Standard of review - 22.412

  • Travel costs - 22.430.09

  • Videographer costs - 22.430.10

• District court's obligation to make explicit findings - 22.111

• Employer's entitlement to fees

  • Apportioning fees between frivolous and non-frivolous claims - 22.330

  • Bad faith and good faith, showing of bad faith not required, and proof of good faith is not a defense - 22.312

  • Discretionary decision, even if legal standard is met, decision to award fees is discretionary - 22.320

  • Dismissal for failure to state a claim does not automatically mean lawsuit was frivolous - 22.314

  • Legal standard for awarding fees to employer - 22.310

  • Plaintiff's reliance on attorney's advice is not a complete defense - 22.311

  • Right to notice before sanctions are imposed - 22.313

  • When is an appeal frivolous? - 22.316

• Equal Pay Act

  • Statutory authority for fees under the Equal Pay Act - 22.143

• Fees for litigating fee award

  • Entitlement to fees for time spent litigating fee award - 22.240

• Hourly rate (calculation of reasonable hourly rate)

  • Attorney's normal hourly rate - 22.231.22

  • District court has broad discretion - 22.231.10

  • Examples of recent hourly rates awarded - 22.231.40

  • Prevailing rate for similar work - 22.231.21

  • Rates in local community - 22.231.20

  • Whether to award current or historical rates - 22.231.30

• Injunctive relief that does not benefit the plaintiff (as affecting prevailing party status)  - 22.224

• Mixed-motive defense as affecting prevailing party status - 22.222

  • Mixed-motive Title VII retaliation claims - 22.222.10

• Nominal relief or no relief (as affecting prevailing party status) - 22.221

• Number of hours (calculation of reasonable number of hours)

  • Duty to exercise "billing judgment" - 22.232.20

  • Hours for "jury watch" - 22.232.31

  • Multiple lawyers performing same task - 22.232.10

• Offer of judgment or settlement offer

  • Attorney's fees not recoverable as part of employer's costs for a Rule 68 offer of judgment - 22.341

  • Calculating amount of judgment with respect to a Rule 68 offer of judgment - 22.239.11

  • Effect of offer of judgment or settlement offer on award of attorney's fees - 22.239.10

  • When does a settlement qualify as a nuisance-value settlement (so as to make an employee accepting a Rule 68 offer of judgment not the prevailing party for purposes of recovering attorney's fees)? - 22.342

• Prevailing party must prove entitlement to all fees claimed - 22.113

• Prevailing plaintiff ordinarily entitled to attorney's fees - 22.213

• Relief on pendent state claims only (as affecting prevailing party status) - 22.223

• Reversal of judgment, effect on fee award when judgment for plaintiff is reversed - 22.261

• Standard of review - 22.120

• Standards for awarding fees under the ADA and Title VII are identical - 22.162

• Standards for awarding fees under 42 U.S.C. § 1981 and Title VII are identical - 22.161

• Standard under 42 U.S.C. § 1988 applies to fee analysis based on other statutes - 22.163

• Statutory authority for fees, 28 U.S.C. § 1927 - 22.131

• Statutory authority for fees, 42 U.S.C. § 1988(b) - 22.132

• Time records should be contemporaneous - 22.234.10

• Time records should be meticulous - 22.234.20

• Title VII

  • Attorney's fees can be awarded under Title VII for a party prevailing in a state administrative proceeding - 22.164

  • Purpose of awarding attorney's fees - 22.150

  • Statutory authority for fees under Title VII - 22.148

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Aviation and Transportation Security Act

• Whether Aviation and Transportation Security Act (Homeland Security) preempts employment discrimination law  - 24.121

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