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TREATISE INDEX "D"

Table of contents for this page
Damages
Deafness
Decisionmaker
Defenses
Deferral states
Demotion
Denial of tenure
Denial of training
Depression
Desert Palace v. Costa
Diabetes
Direct evidence
Direct method of proof
Director (of corporation)
Direct threat to health or safety
Disability
Disability harassment
Discipline (wrongful)
Discovery
Discovery rule (regarding statutes of limitations)
Discrimination
Disparate impact
Disparate treatment
Dispositive motions
Disruptive conduct
District of Columbia
Doctrine of relation back
Driving
Drugs
Drug tests

 

Damages

• ADA statutory authority for damages - 21.152

• ADEA statutory authority for damages - 21.151

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

• Back pay (see, "Equitable relief" on this page)

• Collateral source rule

  • Collateral source rule - 21.920

  • Pension benefits - 21.921

  • Social Security benefits - 21.922

  • Unemployment benefits - 21.923

  • Workers' compensation benefits - 21.924

• Compensatory damages

  • ADA, availability under the ADA - 21.211.20

  • ADEA, availability under the ADEA - 21.211.10

  • Disparate impact actions under the ADA - 21.211.21

  • Disparate impact actions under Title VII - 21.211.81

  • Emotional distress damages - 21.220

    • Actionable wrong caused only part of the distress - 21.223.10

    • Amount of emotional distress damages - 21.223

    • Expert testimony, no requirement of - 21.224

    • Future damages, whether future emotional distress damages can be awarded where the plaintiff has been reinstated? - 21.225.10

    • Standard for recovery of emotional distress damages - 21.221

    • Standard of appellate review of award of emotional distress damages - 21.222

  • FMLA, availability under the FMLA - 21.211.60

  • 42 U.S.C. § 1983, availability under Section 1983 - 21.211.50

  • Rehabilitation Act - 21.211.70

  • Title VII, availability under Title VII - 21.211.80

  • Type of harm covered by compensatory damages - 21.212

  • United States, availability against United States - 21.211.90

• Consent decrees

  • District court's unilateral extension of consent decree - 21.820

  • Standard of review - 21.810

  • Termination of consent decree - 21.830

• Contempt (civil and criminal)

  • Civil contempt - 21.710

  • Criminal contempt - 21.720

• Discount to present value - 21.931

• Duplicative damages

  • Damages under federal law and state law - 21.132

  • Front pay and lost future earnings - 21.133

  • Punitive and liquidated damages, whether they are duplicative - 21.131

• Emotional distress damages (see, "Compensatory damages" above)

• Equal Pay Act statutory authority for damages - 21.153

• Equitable relief

  • Back pay

    • Back pay, maximum back pay period under Title VII is two years - 6.424.31

    • Circumstances under which back pay may not be available - 21.321.40

    • "Excess earnings" do not count against back pay award - 21.321.60

    • Fringe benefits, inclusion of - 21.322

    • Fringe benefits, whether recovery of lost medical premiums requires proof that medical expenses were incurred - 21.322.10

    • Hostile work environment plaintiff must show constructive discharge in order to be entitled to back pay - 21.321.70

    • Judge or jury question - 21.312.10

    • Liquidated damages award, whether award of liquidated damages impacts award of back pay - 21.323

    • Overtime pay as an element of back pay - 21.324

    • Presumption of entitlement to back pay - 21.321.21

    • Purpose of back pay - 21.321.20

    • "Same action" defense can avoid liability for back pay - 21.321.50

    • Standard of review regarding back pay - 21.321.10

    • Time period for which back pay is available - 21.321.30

  • Back pay vs. front pay overview - 21.313

  • Front pay

    • Calculation of amount of front pay - 21.335

      • Amount of front pay is always speculative - 21.335.20

    • Consideration of employee's efforts to mitigate damages - 21.335.50

    • Definition or purpose of front pay - 21.331.20

    • Employee at will, significance of fact that plaintiff is an employee at will - 21.337

    • Fringe benefits, inclusion of in front pay award - 21.336

    • General principles of front pay - 21.331

    • Instatement or reinstatement is preferred over front pay - 21.332

    • Judge or jury question - 21.312.20

    • Liquidated damages award, significance of regarding award of front pay - 21.338

    • Misconduct, consideration of plaintiff's misconduct in determining front pay - 21.334

    • Other damages offsetting need for front pay - 21.335.10

    • Post-verdict conduct, consideration of employer's post-verdict conduct - 21.335.40

    • Reinstatement and front pay combined - 21.333

    • Standard for determining that front pay should be awarded in lieu of instatement or reinstatement - 21.332.10

    • Standard of review of front pay decisions - 21.331.10

    • Work history, consideration of employee's work history in making front pay award - 21.335.30

  • Judge constrained by jury's findings - 21.312.50

  • Standard of review of equitable relief - 21.311

  • What if parties agree to jury determination of equitable relief? - 21.312.40

• Excessive verdict - 21.111

• Excessiveness is determined based on size of award after statutory cap is applied - 21.111.10

• Expungement of records - 21.381

• FMLA statutory authority for damages - 21.156

• 42 U.S.C. § 1981 statutory authority for damages - 21.154

• 42 U.S.C. § 1983 statutory authority for damages - 21.155

• Front pay (see, "Equitable relief" on this page)

• Harassment claims, back pay and front pay not available in harassment claims - 21.115

• Injunctive relief

  • ADEA injunctive relief against states - 21.372

  • Permanent injunction general principles - 21.371

  • Standard for irreparable harm - 21.363

  • Standard for preliminary injunctive relief - 21.361

  • Standard for preliminary injunctive relief where the EEOC is the movant - 21.362

• Interest

  • Post judgment interest - 21.620

    • Interest on attorney's fees - 21.621

  • Prejudgment interest - 21.610

    • Calculation of interest - 21.611.20

    • Discretion of trial court - 21.611

    • Prejudgment interest for future injuries (front pay and emotional distress) - 21.613

    • Prejudgment interest for past injuries (backpay and emotional distress) - 21.612

    • Prejudgment interest on liquidated damages - 21.615.11

    • Rate of interest - 21.611.10

    • Sovereign immunity, no sovereign immunity from prejudgment interest - 21.614

• Liquidated damages

  • ADEA only allows liquidated damages - 21.411

  • ADEA, standard for recovery of liquidated damages - 21.462

  • Damages subject to mandatory doubling - 21.463

  • Equal Pay Act, statutory authority for liquidated damages - 21.471

  • Federal government, availability against federal government - 21.465

  • Local government, availability against local government - 21.464

  • Whether liquidated damages are compensatory or punitive - 21.160

  • Willfulness, explanation of "willfulness" under the ADEA - 21.462.10

  • Willfulness, explanation of "willfulness" under the Equal Pay Act - 21.472.10

  • Willfulness, finding of willfulness mandates an award of liquidated damages - 21.462.30

  • Willfulness is a jury question - 21.462.20

• Lost-chance theory (or multiple plaintiffs claiming denial of same position) - 21.112

• Mitigation of damages

  • Burden of proof - 21.314.10

  • Calculation of back pay where a tolling period is involved - 21.314.50

  • Definition of substantially equivalent work - 21.314.30

    • When is employer relieved of burden of proving substantially equivalent work? - 21.314.31

  • Duty to mitigate damages - 21.314

  • Duty to mitigate applies to front pay as well as back pay - 21.314.21

  • Enrollment in school after unsuccessful job search is not a failure to mitigate - 21.314.80

  • Failure to find work does not establish failure to mitigate - 21.314.22

  • Findings of fact reviewed for clear error - 21.314.11

  • Inability to work caused by defendant/employer - 21.314.60

  • Inability to work not caused by defendant/employer - 21.314.70

  • Reinstatement, failure to mitigate does not affect right to reinstatement - 21.314.90

  • Standard for determining failure to mitigate damages - 21.314.20

  • Tolling back pay period if employee leaves subsequent job - 21.314.40

• Nominal damages

  • Judge or jury question - 21.171

• Offer of judgment - 21.960

• Payroll tax deductions for former employee - 21.141

• Pension rights, judge or jury question - 21.312.30

• Punitive damages

  • ADA, availability of punitive damages - 21.412

    • ADA, availability against local governmental entity - 21.422.20

  • ADA and Title VII statute setting for standard for recovery of punitive damages - 21.431

  • ADA cases, cases addressing Title VII and ADA standard - 21.437

  • ADEA only allows liquidated damages - 21.411

  • "Advice of counsel" defense - 21.435.43

  • Amount of damages, jury has wide discretion - 21.421

  • Burden of proof - 21.425

  • Common law excessiveness, whether award violates common law standard of excessiveness - 21.452

    • Consideration of whether payment will come from pocket of the individual - 21.452.20

    • Review of case law on this issue - 21.452.30

    • Standard of review on issue of common law excessiveness - 21.452.10

  • Due process, whether award violates due process - 21.451

    • Standard of review on due process issue - 21.451.10

  • Employee's failure to follow employer's complaint procedures does not bar recovery of punitive damages - 21.438.10

  • Federal government, availability of punitive damages - 21.423

  • FMLA only allows liquidated damages - 21.416

  • 42 U.S.C. § 1981, availability of punitive damages - 21.414

    • 42 U.S.C. § 1981, availability against local governmental entity - 21.422.50

  • 42 U.S.C. § 1981, Title VII's statutory cap as factor to consider on issue of excessiveness of punitive damages award under 42 U.S.C. § 1981 - 21.451.30

  • 42 U.S.C. § 1983, availability of punitive damages - 21.422.60

  • 42 U.S.C. § 1983 standard for awarding punitive damages - 21.440

  • "Good faith efforts" defense - 21.435.40

    • Burden of proof on "good faith efforts" defense - 21.435.41

  • Harassment, employer liability for harassment - 21.435.30

  • Intentional discrimination may not support punitive damage award in some circumstances - 21.433.20

  • Kolstad overview - 21.432

    • Kolstad's four bases of employer liability - 21.434

  • "Malice or reckless indifference" defined - 21.433.10

  • "Managerial capacity" defined - 21.435.10

  • Punitive damages should only be awarded to plaintiff who directly suffered the conduct supporting the award - 21.427

  • Remedial measures, may employer introduce evidence of remedial measures taken after plaintiff has filed an EEOC charge or a lawsuit? - 21.435.42

  • Requirement of award of compensatory or nominal damages - 21.424

  • "Scope of employment" defined - 21.435.20

  • Section 504 of Rehabilitation Act, availability of punitive damages - 21.417.20

  • Standard of review - 21.426

  • Statutory cap, how does statutory cap affect analysis of ratio of punitive to compensatory damages? - 21.451.20

  • Supervisor's knowledge of harassment not imputed to company where supervisor is harasser - 21.438.20

  • Title VII, availability of punitive damages - 21.418

    • Title VII, availability against local governmental entity - 21.422.80

  • Title VII and ADA statute setting forth standard for recovery of punitive damages - 21.431

  • Title VII cases, cases addressing Title VII and ADA standard - 21.437

  • U.S. Postal Service, availability of punitive damages - 21.423.10

• Proximate causation - 21.114

• Rehabilitation Act statutory authority for damages - 21.157

  • Section 501 incorporates Title VII remedies - 21.157.10

  • Section 504 incorporates Title VI remedies - 21.157.20

• Reinstatement or instatement

  • Co-worker hostility (as a basis for not reinstating) - 21.344

  • General factors to consider - 21.342

  • Instatement or reinstatement is preferred over front pay - 21.332

  • Judge or jury question - 21.312.20

  • Reinstatement and front pay combined - 21.333

  • Standard for determining that front pay should be awarded in lieu of instatement or reinstatement - 21.332.10

  • What if position no longer exists? - 21.343

• Remittitur and/or excessive damages analysis - 21.950

  • Comparison to awards in other cases - 21.953

  • Standard of review - 21.951

• Standard of review of district court's remedy - 21.113

• Statutory cap

  • Affirmative defense, whether the cap is an affirmative defense - 21.123.40

  • Allocating damages between compensatory and punitive to maximize recovery - 21.127

  • Allocating damages between federal and state claims to maximize recovery - 21.128

  • Amendment of pleadings post-verdict to maximize recovery - 21.129

  • Back pay not subject to statutory cap - 21.122.10

  • Constitutionality of statutory cap - 21.123.20

  • EEOC, where EEOC is the only named plaintiff, but is suing on behalf of several individuals, can the EEOC recover up to the statutory cap for each individual? - 21.123.60

  • Front pay not subject to statutory cap - 21.122.20

  • Labor organizations, application of statutory cap to labor organizations - 21.126

  • Number of employees, whether number of employees in "current or preceding calendar year" refers to the year of the discriminatory act or the year of the judgment - 21.123.50

  • Should statutory cap be a factor in the analysis so that only the most egregious cases are awarded the maximum under the cap? - 21.952

  • Standard of review on questions involving application of the statutory cap - 21.123.10

  • Statutory cap statute - 21.121

  • Whether statutory cap applies per lawsuit or per claim - 21.123.30

• Tax enhancement damages - 21.240

• Title VII

  • Damages not available if plaintiff can recover under 42 U.S.C. § 1981 - 21.198.20

  • Full relief, Title VII plaintiff entitled to "full relief" - 21.198.10

  • Title VII statutory authority for damages - 21.158

• Unrealized stock appreciation (as element of damages) - 21.250

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Deafness

• Hearing or deafness (cases addressing particular medical impairments) - 13.251.16

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Decisionmaker

• Who qualifies as a decisionmaker - 4.150

• Whether discriminatory animus of committee member is attributable to the committee as a whole - 4.151

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Defenses

• Defenses specific to ADA - see, "Americans with Disabilities Act" (this index)

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Deferral states

• Effect of failure to file with state or local agency - 6.432

• Jurisdiction, if state or local agency does not have subject matter jurisdiction over a particular claim, then the 180 day time limit applies - 6.433

• Necessity of timely filing administrative charge with state or local agency - 6.431

• State agency must have time to investigate before charge is filed with EEOC - 6.431.20

• Whether charge is deemed to have "initially" been filed with state or local agency - 6.431.10

• Worksharing agreement, effect of - 6.431.21

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Demotion

• Demotion prima facie case - 4.532.40

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Denial of tenure

• Court's review of tenure decisions - 3.271

• Denial of tenure (when time begins to run for filing an administrative charge) - 6.424.20

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Denial of training

• Denial of training prima facie case - 4.533.20

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Depression

• Depression (cases addressing particular medical impairments) - 13.251.12

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Desert Palace v. Costa

• Was McDonnell Douglas altered by Desert Palace v. Costa - 4.420

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Diabetes

• Diabetes (cases addressing particular medical impairments) - 13.251.13

• Diabetes as a direct threat to health or safety under the ADA - 13.364.32

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Direct evidence

• Burden of proof shifts to defendant - 4.351

• Definition of "direct evidence" - 4.330

• "Direct evidence" not required for mixed-motive cases - 4.220

• Quantum of proof necessary to prove discrimination with direct evidence - 4.350

• Whether statements constitute direct evidence - 4.360

  • Statements by decisionmaker that are remote in time or unrelated to the decision in question - 4.361

  • Statements by non-decisionmakers as direct evidence - 4.362

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Direct method of proof

• Confusion between "direct method of proof" and "direct evidence" - 4.310

• Quantum of proof necessary to prove discrimination with circumstantial evidence - 4.340

• Definition of "direct method of proof" - 4.320

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Director (of corporation)

• Whether a director is an employee - 1.400

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Direct threat to health or safety

• See, Americans with Disabilities Act (this index)

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Disability

• Breathing (disabled with respect to) - 13.225.02

• Burden of proof is on employee to prove disability - 13.224.41

• Caring for oneself (disabled with respect to) - 13.225.03

• Corrective measures - 13.224.60

  • Corrective measure may substantially limit a major life activity - 13.224.61

  • Employee's failure to take corrective measures - 13.410

• Definition of disability, three alternatives

  • Statutory authority - 13.211

    • Regulations addressing whether someone is disabled - 13.212

• Disability (actual disability as opposed to regarded as or record of)

  • Person with a disability (proof is three step process) - 13.220

• Disability must be long term or permanent

  • Case law - 13.272

  • EEOC Interpretive Guidance - 13.271

• "Disability" under the ADA and "serious health condition" under the FMLA are different standards - 13.161

• Eating (disabled with respect to) - 13.225.09

• Essential job functions (this index)

• Impairment

  • Definition of impairment - 13.221.10

  • Determination of existence of impairment is a question of law - 13.221.30

  • Obesity as an impairment - 13.221.40

  • Plaintiff's duty to identify impairment - 13.221.20

  • Plaintiff's duty to identify major life activity affected by impairment - 13.222.30

• Interacting with others (disabled with respect to) - 13.225.14

• Interactive process (see this index)

• Knowledge, employer must know of disability - 13.260

• Learning (disabled with respect to) - 13.225.16

• Lifting (disabled with respect to) - 13.225.17

• Liver function (disabled with respect to) - 13.225.18

• Manual tasks (disabled with respect to) - 13.225.19

• Medical proof, necessity of medical proof in proving that an impairment substantially limits a major life activity - 13.224.71

• Procreation / Reproduction (disabled with respect to) - 13.225.21

• Qualified individual with a disability (see this index)

• Record of a disability

  • Hospital stay not sufficient - 13.241

  • Person with a record of such an impairment - 13.240

  • Regulations addressing whether someone has a record of a disability - 13.214

• Regarded as disabled

  • DOT regulations, person who cannot meet DOT regulations is not regarded as disabled - 13.232.40

  • Employee who was fine when hired is more likely to be regarded as disabled if an illness or injury develops - 13.232.70

  • IME request, Employer's request to IME is insufficient to establish "regarded as disabled" - 13.232.50

  • Employer's knowledge of medical condition is insufficient to establish "regarded as disabled" - 13.232.10

  • No "good faith" defense, but . . . - 13.233

  • Offer of accommodation, whether offer of accommodation is evidence that employer regarded employee as disabled? - 13.232.30

  • Pretext, can evidence of pretext be considered as part of prima facie case to establish "regard as" disabled? - 13.232.20

  • Regarded as disabled re working - 13.231.10

  • Regulations addressing whether someone is regarded as disabled - 13.213

  • Reliance (by employer) on medical advice - 13.232.60

  • Repetitive motion screening test - 13.232.80

  • Standard for proving "regarded as" claims - 13.231

• Reproduction / Procreation (disabled with respect to) - 13.225.21

• Seeing (disabled with respect to) - 13.225.24

• Speaking (disabled with respect to) - 13.225.28

• Substantially limits

  • Corrective measure may substantially limit a major life activity - 13.224.61

  • Courts' interpretation of "substantially limits" - 13.224.20

  • Health problems triggered by single workplace are not sufficient to substantially limit a major life activity - 13.224.82

  • Individualized inquiry required as to whether impairment substantially limits a major life activity - 13.224.50

  • Necessity of comparative evidence in proving that an impairment substantially limits a major life activity - 13.224.72

  • Necessity of medical proof in proving that an impairment substantially limits a major life activity - 13.224.71

  • Necessity of vocational expert proof in proving whether an impairment substantially limits a major life activity - 13.224.73

  • Regulatory definition - 13.224.10

  • Whether impairment substantially limits a major life activity is a question of fact - 13.224.40

• Thinking (disabled with respect to) - 13.225.29

• Walking (disabled with respect to) - 13.225.31

• Working (disabled with respect to) - 13.225.32

  • Definition of "broad range of jobs" or "class of jobs" - 13.225.32.10

  • Employee not disabled based on inability to work for particular supervisor - 13.225.32.40

    • Supervisor could trigger a disability - 13.225.32.41

  • Overtime, whether the inability to work overtime constitutes a substantial limitation - 13.225.32.30

  • Regulations addressing whether someone is disabled from the major life activity of working - 13.212.10

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Disability harassment

• Harassment based on disability (cognizability of claim) - 13.128

• See, Hostile Work Environment (this index)

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Discipline (wrongful)

• Discipline (wrongful) prima facie case - 4.533.40

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Discovery

• Immigration status (whether this is discoverable) - 7.211

• Privileges

  • Psychotherapist-patient privilege - 7.221

• Scope of discovery - 7.210

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Discovery rule (regarding statutes of limitations)

• Discovery rule with respect to administrative charges - 6.421.30

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Discrimination

• Employer's refusal to undo a discriminatory decision is not a fresh act of discrimination - 3.230

• Favoritism to paramour, family member or others is not evidence of a pretext for discrimination - 4.750.10

• Termination due to status as paramour - 4.750.11

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Disparate impact

• ADEA, whether disparate impact claims are available - 5.211

• ADEA, proving ADEA disparate impact claims - 5.240

  • Employee has burden of proving unreasonableness - 5.241

• Business necessity

  • Definition of business necessity - 5.261

  • Evidence necessary for employer to establish "business necessity" in a disparate impact case - 5.260

  • Use of cut-off scores - 5.261.10

• Business practice

  • Who has burden of proving the existence (or non-existence) of an alternative business practice? - 5.222

• Equal Pay Act, no disparate impact component - 14.151

• Evidence of discriminatory intent unnecessary - 5.221

• 42 U.S.C. § 1981, whether disparate impact claims are available - 5.214

• General principles of disparate impact - 5.220

  • Overview of general method of proof - 5.230

• Hostile work environment claims predicated on disparate impact - 5.219.10

• Jury trial, no right to jury trial on Title VII disparate impact claims - 10.120

• Rehabilitation Act, whether disparate impact claims are available - 5.217

• Standard of review regarding factual findings of disparate impact - 5.223

• Statistical evidence as part of prima facie case of disparate impact - 5.251

  • Statistical evidence as part of prima facie case - in general - 5.251.10

    • Groups to be compared by statistical evidence - 5.251.40

      • Four-fifth's rule - 5.251.20

      • Reduction in force case - 5.251.41

    • Two standard deviations - 5.251.30

      • Definition of standard deviation - 5.251.50

• Title VII, whether disparate impact claims are available - 5.218

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Disparate treatment

• Disparate treatment is not per se illegal - 4.140

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Dispositive motions

• Judgment as a matter of law

  • At what point should the court no longer revisit whether a prima facie case has been established? - 10.520

    • Even though a court may not revisit the prima facie case, it may still determine that essential elements of the claim do not exist - 10.521

  • Party bearing burden of proof - 10.510

• Plaintiff cannot contradict complaint - 7.312

• Summary judgment

  • Conclusory affidavits - 7.322.20

  • EEOC reasonable cause determination not sufficient to create jury question - 7.322.40

  • General summary judgment standard - 7.321.10

    • Does standard differ in direct evidence vs. circumstantial evidence cases? - 7.321.30

    • Summary judgment standard in hostile work environment cases - 7.321.40

  • Hesitancy to grant summary judgment in employment discrimination cases - 7.321.20

  • Means of defeating a motion for summary judgment - 7.322.10

  • Notice of significance of summary judgment motion must be given to pro se plaintiffs - 7.323

  • Prima facie case, whether lower court may assume existence of prima facie case - 7.324

  • Self-serving affidavits, whether self-serving affidavits can defeat a motion for summary judgment? - 7.322.30

  • Statement by defense counsel, whether statement by defense counsel can create a disputed material fact? - 7.322.50

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Disruptive conduct

• Insubordination or disruptive conduct as the basis for an adverse employment action - 4.622.10

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District of Columbia

• Interaction between federal employment discrimination law and District of Columbia "state law" - 23.010

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Doctrine of relation back

• Relation back as a ground for excusing the late filing of an EEOC charge - 6.455

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Driving

• Driving as a major life activity - 13.223.08

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Drugs

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

• Drug use as affecting whether someone is a qualified individual under the ADA - see, "Qualified Individual" (this index)

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Drug tests

• Drug tests (under the ADA) of former substance abusers - 13.553

• Drug testing not a medical exam (under the ADA) - 13.823

• Drug testing and DOT regulations - 13.823.10

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