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TREATISE INDEX "E"

Table of contents for this page
Eating
EEOC (Equal Employment Opportunity Commission)
Eleventh Amendment immunity
"Eleventh hour" claim
Eliminating waste
Ellerth / Faragher
Emotional distress (or compensatory) damages
Employee
Employer
Employer's defenses
Employment agency
"English only" rule
Epilepsy
Equal Pay Act
Equal Protection Clause
Equitable estoppel (with respect to filing administrative charges)
Equitable estoppel (with respect to filing a lawsuit)
Equitable tolling (with respect to filing an administrative charge)
Equitable tolling (with respect to filing a lawsuit)
Essential job functions (disability cases)
Estoppel
Evidence
Exhaustion of administrative remedies
Expert opinion
Extra-territorial employees

 

Eating

• Eating as a major life activity - 13.223.09

• Eating (disabled with respect to) - 13.225.09

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EEOC (Equal Employment Opportunity Commission)

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

• EEOC as defendant - 2.710

  • Allegation of inadequate EEOC investigation - 2.720

  • Allegations against federal EEO - 2.740

  • Declaratory judgment against EEOC - 2.730

• EEOC as plaintiff - 1.800

  • EEOC or Department of Justice may bring Title VII lawsuit - 6.111.10

  • Person aggrieved may intervene if EEOC or Department of Justice brings a lawsuit - 6.111.11

• EEOC documents/EEOC findings as trial evidence (see, "Evidence" this page)

• EEOC findings sufficient to create jury question? - 4.748.10

• EEOC has authority to award damages against the U.S. government - 2.907

• EEOC Policy Manual - 6.720

• "Exhaustion of administrative remedies" (see this page)

• Federal employee exhaustion requirements (see this index)

• Non-assistance agreements (are agreements that an employee will not assist the EEOC valid?) - 6.810

• Public record, EEOC charge is a public record - 7.311

• Reasonable cause, what if EEOC finds "reasonable cause"? - 6.910

• Release of EEOC investigation file - 6.830

• Subpoena powers, scope of EEOC subpoena powers - 6.820

  • Cases interpreting the EEOC's authority to issue subpoenas - 6.823

  • Standard of review - 6.822

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Eleventh Amendment immunity

• Abrogation of Eleventh Amendment immunity

  • ADA - 9.323

    Ex Parte Young actions permitted - 9.323.10

    Retaliation claims under the ADA - 9.323.40

    State can still be sued by United States for ADA violation - 9.323.20

    State can still be sued in most state courts for ADA violation - 9.323.30

  • ADEA - 9.322

    • State can still be sued by United States for ADEA violation - 9.322.10

  • Two-pronged test for Congressional abrogation of states' immunity - 9.321.51

  • Equal Pay Act - 9.324

  • Family and Medical Leave Act (FMLA) - 9.325

  • 42 U.S.C. § 1981 - 9.326

  • 42 U.S.C. § 1983 - 9.327

  • Title VII - 9.329

    • Disparate impact claims - 9.329.10

    • Religious discrimination claims - 9.329.20

    • Retaliation claims - 9.329.30

    • Same sex harassment claims - 9.329.41

• "Arm of the state", test for determining whether a governmental entity is an arm of the state - 9.321.32

• Burden of proof - 9.321.31

• Hybrid entity, whether hybrid entity is protected by Eleventh Amendment immunity - 9.321.35

• Individual, whether local governmental entity is protected by Eleventh Amendment immunity - 9.321.36

• Injunctive relief, availability of injunctive relief against a state - 9.321.71

• Interlocutory appeal, right to interlocutory appeal - 9.321.83

• Local governmental entity, whether local governmental entity is protected by Eleventh Amendment immunity - 9.321.34

• Puerto Rico as a state for purposes of Eleventh Amendment immunity - 9.321.37

• School board as an "arm of the state" - 9.321.41

• School district as an "arm of the state" - 9.321.42

• Standard of review - 9.321.10

• State must be real party in interest - 9.321.33

• Supplemental jurisdiction statute does not toll time for bringing action in state court - 9.321.82

• Text of Eleventh Amendment - 9.321.20

• Title VII plaintiff must obtain right to sue letter from Attorney General or immunity is not waived - 9.321.84

• Waiver, state's waiver of Eleventh Amendment immunity

  • Acceptance by state of federal funds - 9.321.62

    • Waiver under Rehabilitation Act based on receipt of federal funds - 9.328.10

  • Removal, whether removal by state to federal court constitutes a waiver - 9.321.63

• When must Eleventh Amendment immunity defense be raised - 9.321.81

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"Eleventh hour" claim

• Eleventh hour claim of discrimination or entitlement to accommodation does not protect employee - 3.250

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Eliminating waste

• Cleansing and eliminating waste from blood as a major life activity - 13.223.05

• Eliminating waste from body as a major life activity - 13.223.10

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Ellerth / Faragher

• See, "Hostile Work Environment" heading (this index) and look under the sub-heading of "Employer liability"

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Emotional distress (or compensatory) damages

• See, "Damages" (this index)

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Employee

• Definition of employee under the ADA - 1.210

• Definition of employee under the ADEA - 1.220

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

• Definition of employee under the Equal Pay Act - 1.230

• Definition of employee under the Family and Medical Leave Act (FMLA) - 1.240

• Definition of employee under 42 U.S.C. § 1981 - 1.250

• Definition of employee under 42 U.S.C. § 1983 - 1.260

• Definition of employee under the Rehabilitation Act - 1.270

• Definition of employee under Title VII - 1.280

• Employee or independent contractor - 1.300

  • Common law agency test - 1.310

  • Economic realities test - 1.320

  • The hybrid approach in the Fifth Circuit - 1.340

  • The hybrid approach in the Tenth Circuit - 1.330

  • Insurance agent (employee or independent contractor?) - 1.351

• Former employee as a plaintiff under the ADA - 1.510

• Former employee as a plaintiff under the ADEA - 1.520

• Former employee as a plaintiff under the FMLA - 1.530

• Former employee as a plaintiff under Title VII - 1.540

• Number of employees for purposes of determining applicability of various employment discrimination laws - 2.220

  • How to calculate the number of employees - 2.221

    • Employees who can sue are employees who can be counted - 2.221.10

    • Foreign employees may be counted - 2.221.20

    • Employees who have been delegated almost absolute discretion to run a business are still counted as employees - 2.221.30

    • Whether union stewards are counted as employees - 2.521

  • Whether "number of employees" requirement applies to state agency in an ADEA action - 2.223.10

  • Whether the "number of employees" is an issue of subject matter jurisdiction - 2.222

• Persons with ownership interest: owner / shareholder / director / partner - 1.400

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Employer

• Agent of employer - 2.250

• De facto employer - 2.290

• Definition of employer under the ADA - 2.212

• Definition of employer under the ADEA - 2.211

• Definition of employer under the Equal Pay Act - 2.213

• Definition of employer under the FMLA - 2.216

• Definition of employer under 42 U.S.C. § 1981 - 2.214

• Definition of employer under 42 U.S.C. § 1983 - 2.215

• Definition of employer under the Rehabilitation Act - 2.217

  • Rehabilitation Act does not incorporate ADA's definition of employer - 2.217.10

• Definition of employer under Title VII - 2.218

• Former employer liability - 2.280

• Indirect employer theory - 2.270

• Joint employer theory - 2.240

  • Determining which entity (out of two or more) is the employer - 2.241

• Labor organization as an employer - 2.520

  • Whether union stewards are counted as employees - 2.521

  • Whether union board members are counted as employees - 2.522

• Non-profit corporation, whether a non-profit corporation can be sued - 2.903

• Single employer theory - 2.230

• Successor liability - 2.260

• United States military, whether the U.S. military can be sued - 2.908

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Employer's defenses

• See, "Defenses (this index)

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Employment agency

• Definition of employment agency - 2.410

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"English only" rule

• "English only" rule - 19.541.10

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Epilepsy

• Epilepsy (cases addressing particular medical impairments) - 13.251.15

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Equal Pay Act

• Applicability of McDonnell Douglas to the Equal Pay Act - 4.412.30

• Comparison to successors and predecessors - 14.390

• Continuing violation theory - 9.141.10

• Corning Glass burden-shifting framework - 14.210

• Disparate impact, no disparate impact component - 14.151

• Employee, definition of under the Equal Pay Act - 1.230

• Employer, definition of under the Equal Pay Act - 2.213

• Employer's burden, in general - 14.410

• Equal responsibility - 14.370

• Equal work - 14.340

  • Jury question, existence of "equal work" is jury question - 14.341

• Establishment (or physical place of business) - 14.320

• Exhaustion requirements, no duty to exhaust administrative remedies - 6.120

• Factor other than sex

  • Education - 14.451

• Foreign employer and/or foreign employment - Applicability of the Equal Pay Act - 2.630

• 42 U.S.C. § 1983, comparison to 42 U.S.C. § 1983 - 14.160

• Fungible positions can support a prima facie case - 14.342

• Individual liability under the Equal Pay Act - 2.113

• Overtime, denial of opportunity to work overtime - 14.332

• Purpose of Equal Pay Act - 14.140

• Regulations - 14.120

• Retaliation claims (see, this index)

• Statistical evidence, plaintiff can rely on statistical evidence - 14.331

• Statute - 14.110

• Statute of limitations - 9.123

  • Length of filing period for a willful violation - 9.123.10

• Title VII, comparison to Title VII claims - 14.150

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Equal Protection Clause

• Affirmative action claims - 17.641

• Age discrimination, mandatory retirement of judges - 17.622.10

• Age discrimination, rational basis scrutiny applies - 17.621

• Disability discrimination, rational basis scrutiny applies - 17.631

• Gender stereotyping - 17.652

  • Proving gender stereotyping - 17.652.10

• Proving Equal Protection Clause violation - 17.610

• Race discrimination - 17.640

• Rational basis scrutiny defined - 17.613

• "Same decision" defense - 17.810

• Sex discrimination - 17.650

• Sex plus or gender plus discrimination - 17.651

• Sexual harassment - 17.653

• Sexual orientation discrimination - 17.654

• Standing, lack of standing if plaintiff would not have been hired or promoted even if impermissible motive had not been considered - 17.820

• Strict scrutiny defined - 17.612

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Equitable estoppel (with respect to filing administrative charges)

• Employer's threat of retaliation does not extend the statute of limitations - 6.453.30

• Standard of review (in context of administrative charge) - 6.453.11

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Equitable estoppel (with respect to filing a lawsuit)

• Equitable estoppel - 9.143

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Equitable tolling (with respect to filing an administrative charge)

• Burden of proof - 6.454.12

• Due to EEOC mistake - 6.454.30

• Due to employer's affirmative acts - 6.454.60

• Due to plaintiff's lack of English fluency - 6.454.70

• Due to plaintiff's mental disability - 6.454.40

• Judge or jury question? - 6.454.11

• Standard of review - 6.454.13

• Standard for availability of equitable tolling - 6.454.20

• Tolling normally ceases upon retention of attorney - 6.454.80

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Equitable tolling (with respect to filing a lawsuit)

• Equitable tolling - 9.144

  • Attorney mistake as a basis for equitable tolling - 9.144.10

  • EEOC mistake as a basis for equitable tolling - 9.144.20

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Essential job functions (disability cases)

• Determination of what constitutes an essential job function is normally a question of fact for jury - 13.333.11

• Does judge or jury determine whether plaintiff can perform the essential functions of the job? - 13.333.20

• Employee's self-serving affidavit that he is able to perform essential job functions may not create a jury question - 13.333.30

• Essential job functions?

  • Ability to work full time - 13.335.01

  • Ability to work overtime - 13.335.02

  • Arriving at work on time - 13.335.03

  • Handle stress - 13.335.04

  • Job rotation - 13.335.05

  • Physical presence at the plant - 13.335.06

  • Regular attendance - 13.334

  • Vacuuming by hotel housekeeper - 13.335.07

  • Work well with others - 13.335.08

• If employer informally accommodates a job function does that prove the job function is non-essential? - 13.336

• Job functions performed only sometimes or even rarely can still be essential - 13.333.13

• Person must be able to perform essential functions in order to qualify for intermittent or reduced schedule FMLA leave - 13.162

• Statutory definition - 13.331

  • Regulation - 13.332

• What constitutes an essential job function? - 13.333.10

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Estoppel

• "Equitable estoppel" see this page

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Evidence

• Company documents, admissibility of - 10.316

  • Missing personnel evaluations - 10.316.10

• EEOC documents/EEOC findings as trial evidence - 10.312

  • Admissibility of findings of company EEO officer - 10.312.20

  • Standard of review - 10.312.10

• Expert opinion

  • Conclusory testimony - 10.323

  • Expert testimony as to credibility - 10.322

  • Standard for admissibility of expert opinion - 10.321

  • Standard for consideration on summary judgment of expert opinion - 10.321.10

  • Standard for appellate review of admissibility determination regarding expert opinion - 10.321.20

  • Treating physician whose opinion contradicts his own records - 10.324

  • Vocational expert - 10.325

• Federal record retention requirements - 10.340

• General statements by senior executives, admissibility of - 10.315

• Harassment claims - 10.480

• Lay opinion as to whether plaintiff was depressed - 10.318.20

• Lay opinion on ultimate issue - 10.318.10

• Sexual history of plaintiff, Rule 412 - 10.319.10

  • Cases applying Rule 412 - 10.319.20

• Statement of agent of party-opponent, admissibility of - 10.314

• Statements by decisionmakers and non-decisionmakers, admissibility of - 10.313

• "Statistical evidence" (see, this index)

• Time-barred evidence / background evidence - 10.311

• Treatment of comparable employees before and after the lawsuit is filed, admissibility of - 10.317

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Exhaustion of administrative remedies

• ADA overview - 6.112

• ADEA overview - 6.113

• Administrative charge

  • Charge must be verified - 6.313.10

    • EEOC regulation allowing verification to relate back is valid - 6.313.30

    • Employer who responds to unverified charge on merits waives the verification requirement - 6.313.40

  • Sufficiency of administrative charge - 6.311

  • Verification requirement is not jurisdictional - 6.313.20

• Complainant may withdraw charge with permission of EEOC - 6.219

• Dismissal with prejudice, whether dismissal for failure to exhaust administrative remedies is with prejudice - 6.214

• Effect of EEOC right to sue letter on state exhaustive requirements - 6.215

• Effect of EEOC's failure to address claim - 6.217

• Effect of failure to name correct employer in charge - 6.218

• Employer's internal administrative remedies, whether employee is required to first exhaust employer's internal administrative remedies? - 6.140

• Exhaustion is a question of law, whether administrative remedies have been exhausted is a question of law - 6.213.10

• Failure to cooperate, effect of employee's failure to cooperate with EEOC investigation - 6.216

• Federal employees, see "Federal employee exhaustion requirements" (this index)

• Intake questionnaire, whether intake questionnaire constitutes a charge - 6.312

• Jurisdictional prerequisite, whether exhaustion requirement is a jurisdictional prerequisite? - 6.212

• Lawsuit filed prior to exhaustion, what if lawsuit is filed early? - 6.212.10

• Purpose of exhaustion requirement - 6.211

• Rehabilitation Act claim of federal employee - 6.114

• Rehabilitation Act claim of non-federal employee - 6.125

• Scope of the charge - 6.320

  • EEOC negligence in filling out charge form - 6.325

  • EEOC, scope of charge requirement does not apply to actions brought by EEOC - 6.326

  • Employer defenses, must employer raise all defenses in response to EEOC charge? - 6.331

  • Liberal construction of charges - 6.322

  • "Like or reasonably related" - 6.323

    • ADA, whether ADA "reasonable accommodation" claim is within scope of charge alleging termination "because of disability" - 6.323.41

    • Age discrimination claim not within scope of hostile work environment claim - 6.323.22

    • Consideration of affidavit filed with the charge - 6.323.60

    • Co-worker harassment not within scope of supervisory harassment charge - 6.323.31

    • Disability discrimination claim not within scope of Title VII claim - 6.323.23

    • Disparate impact, whether disparate impact claim is within scope of charge alleging disparate treatment - 6.323.51

    • Disparate impact, whether disparate impact claim is within scope of charge alleging retaliation - 6.323.52

    • Disparate treatment claim not within scope of hostile work environment claim - 6.323.24

    • Failure to transfer claim not within scope of charge alleging wrongful termination - 6.323.26.10

    • Retaliation claims arising before the filing of the EEOC charge - 6.323.11

    • Retaliation claims arising after the filing of the EEOC charge - 6.323.12

    • Title VII, whether Title VII religious accommodation claim is within scope of disparate treatment and harassment claims - 6.323.42

    • Whether discrimination based on facts not mentioned in the charge is within the scope of the charge - 6.323.25

    • Whether underlying discrimination claim is within scope of charge alleging retaliation - 6.323.21

  • Need to specify facts and/or legal theory - 6.324

  • Standard review - 6.321

• Settlement agreement, no duty to exhaust administrative remedies before filing suit to enforce a settlement agreement - 6.130

• Single filing (or piggybacking) rule - 6.314

  • ADEA actions - 6.314.10

  • Person who has previously filed a charge may not try to piggyback onto someone else's EEOC charge - 6.314.30

  • Person who timely filed charge must file lawsuit - 6.314.20

• Standard of review is de novo - 6.213.20

• Statutes not requiring exhaustion of administrative remedies - 6.120

• Statutes requiring exhaustion of administrative remedies - 6.110

• Timeliness of administrative charge - In general - 6.410

  • Collateral review does not toll limitations period - 6.422.30

  • Constructive discharge claim (when time begins to run) - 6.424.10

  • Continuing violation (see this index)

  • Deferral states (see this index)

  • Denial of tenure (when time begins to run) - 6.424.20

  • Discovery rule - 6.421.30

  • Discrete acts (when time begins to run) - 6.422

    • Failure to remedy an unlawful employment action is not a discrete act - 6.422.20

    • Request of accommodation is a discrete act - 6.422.10

  • Equitable estoppel (see this page)

  • Equitable tolling (see this page)

  • Non-discrete acts

    • "Glass ceiling" claim - 6.423.20

    • Hostile work environment claims - 6.423.10

  • Parties can agree to an abbreviated statute of limitations - 6.411

  • Promotions roster (when time begins to run) - 6.424.60

  • Relation back (see this index)

  • Retirement plan (when time begins to run) - 6.424.40

  • Seniority system (when time begins to run) - 6.424.50

  • Time begins to run on the date notified of employer's decision - 6.421.10

  • Time begins to run on the date notified of employer's adoption of facially neutral policy - 6.421.20

  • Tolling while class certification is sought - 6.460

    • Stacking of subsequent class actions - 6.461

  • Unequal pay (when time begins to run) - 6.424.30

  • Waiver (see this index)

• Title VII statutory authority - 6.111.01

  • Charge shall first be filed with State or local agency - 6.111.06

    • Complainant may file suit without final determination from State or local agency - 6.111.07

  • Court may appoint counsel and permit EEOC or Department of Justice to intervene - 6.111.13

  • Duty to file administrative claim - 6.111.02

  • EEOC or Department of Justice may bring Title VII lawsuit - 6.111.10

    • Person aggrieved may intervene if EEOC or Department of Justice brings a lawsuit - 6.111.11

    • When person aggrieved may bring lawsuit - 6.111.12

  • EEOC or Department of Justice may seek temporary or preliminary relief - 6.111.14

  • EEOC's duty to notify State or local agency if it brings a charge - 6.111.08

  • EEOC's reasonable cause determination - 6.111.04

    • Time for making reasonable cause determination - 6.111.05

  • Notice to employer - 6.111.03

  • Time for filing administrative charge - 6.111.09

  • Time for "person aggrieved" to bring lawsuit - 6.111.12

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Expert opinion

• See, "Evidence" (this page)

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Extra-territorial employees

• Whether extra-territorial U.S. citizen is protected by the ADA - 1.908.11

• Whether extra-territorial U.S. citizen is protected by the ADEA - 1.908.12

• Whether extra-territorial U.S. citizen is protected by 42 U.S.C. § 1981 - 1.908.15  

• Whether extra-territorial U.S. citizen is protected by Title VII - 1.908.18

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