Chapter 9 - Employer's Defenses

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Disclaimer: The Treatise is based upon federal appellate court decisions from 1996 to 2008. We are currently in the process of updating the Treatise. Until that update is complete, it is possible that certain cases cited in the Treatise may no longer represent current law. ------------------------- Chapter 9 - Employer's Defenses Overview 9.100 Failure to timely file lawsuit 9.200 Other procedural defenses 9.300 Absolute immunity 9.400 Qualified immunity 9.500 Res Judicata / Collateral Estoppel 9.600 Judicial Estoppel 9.700 General defenses 9.800 Other defenses Detail 9.100 Failure to timely file lawsuit 9.110 In general 9.111 Parties can agree to an abbreviated statute of limitations 9.112 Statute of limitations is an affirmative defense 9.120 Length of filing period 9.121 ADEA 9.121.10 Statute of limitations (for non-federal employees) 9.121.20 Statute of limitations where federal employee pursues EEOC remedies before filing ADEA action 9.121.30 Statute of limitations where federal employee brings direct ADEA action 9.122 ADA 9.123 Equal Pay Act 9.123.10 Willful violation 9.124 42 U.S.C. § 1981 9.124.10 Claims cognizable before the Civil Rights Act of 1991 9.124.11 Certain failure-to-promote claims may have been cognizable before the Civil Rights Act of 1991 9.124.20 Claims only cognizable after the Civil Rights Act of 1991 9.125 42 U.S.C. § 1983 9.126 FMLA 9.127 Rehabilitation Act 9.128 Title VII 9.128.10 Title VII filing period is not jurisdictional 9.129 42 U.S.C. §§ 1981 and 1983 - length of filing period by State 9.130 When filing period begins to run 9.131 Issuance of right-to-sue letter 9.131.10 How is 90-day period calculated? 9.131.11 Plaintiff has burden of proving suit filed within 90 days 9.131.12 What if plaintiff picks up right-to-sue sent via certified mail within time allotted by Postal Service? 9.131.13 What if plaintiff does not claim right-to-sue letter sent via certified mail? 9.131.14 Presumption that right-to-sue letter was mailed 9.131.15 Presumption as to when right-to-sue letter was received 9.131.20 When does time begin to run if both the attorney and the client receive the right-to-sue letter? 9.131.30 EEOC notice can be oral 9.131.40 EEOC's Notice of Reconsideration can void right-to-sue letter 9.131.41 Second right-to-sue letter does not toll limitations period unless EEOC has engaged in reconsideration 9.131.50 Whether request for reconsideration of EEOC decision tolls 90-day filing period? 9.131.51 Federal employee's request for reconsideration of EEOC decision tolls 90-day filing period 9.131.52 Non-federal employee's request to EEOC for reconsideration does not toll 90-day filing period 9.131.60 When state is defendant, right to sue letter must be obtained from Department of Justice 9.131.61 Statute 9.131.62 Cases 9.131.70 Issuance of right-to-sue letter before 180 days has run 9.131.71 EEOC regulation 9.131.72 Whether EEOC regulation is valid 9.131.80 Plaintiff can only file suit after receiving a right-to-sue letter that is issued in connection with a timely-filed EEOC charge 9.132 Discrete acts 9.132.10 Request for accommodation is a discrete act 9.133 Non-discrete acts 9.133.10 Applicability of National Railroad to 42 U.S.C. § 1981 9.134 When cause of action accrues 9.134.10 Question of federal law 9.135 Particular claims 9.135.10 Constructive discharge 9.135.20 Tolling due to class certification 9.140 Grounds for excusing late filing 9.141 Continuing violation 9.141.10 Equal Pay Act 9.142 Waiver 9.143 Equitable estoppel 9.144 Equitable tolling 9.144.10 Attorney mistake 9.144.20 EEOC mistake 9.150 Effect of a nonsuit or dismissal without prejudice 9.160 Lapsed claim cannot be revived by filing new EEOC charge [TOP] 9.200 Other procedural defenses 9.300 Absolute immunity 9.310 Judicial immunity 9.311 Quasi-judicial immunity 9.311.10 Defense not available to official capacity defendant 9.320 Eleventh Amendment immunity 9.321 General principles 9.321.10 Standard of review 9.321.20 Text of Eleventh Amendment 9.321.21 Explanation of Eleventh Amendment immunity 9.321.30 Who is protected by the Eleventh Amendment? 9.321.31 Who has burden of proof? 9.321.32 Test for determining whether a governmental entity is an arm of the state 9.321.33 State must be real party in interest 9.321.34 Local governmental entity 9.321.35 Hybrid entity 9.321.36 Individual liability 9.321.37 Puerto Rico as a state 9.321.40 Cases addressing whether a particular entity is an arm of the state 9.321.41 School board 9.321.42 School district 9.321.50 Whether Congress has abrogated Eleventh Amendment immunity 9.321.51 Two-pronged test for Congressional abrogation of states' immunity 9.321.60 Whether a state has waived Eleventh Amendment immunity 9.321.61 Intention to waive immunity 9.321.62 Acceptance of federal funds 9.321.63 Whether removal to federal court constitutes a waiver 9.321.70 Relief available against the state 9.321.71 Injunctive relief 9.321.80 Miscellaneous issues 9.321.81 When must defense be raised 9.321.82 Supplemental jurisdiction statute does not toll time for bringing action in state court 9.321.83 Right to interlocutory appeal 9.321.84 Plaintiff must obtain right to sue letter from Attorney General or state retains immunity 9.322 ADEA 9.322.10 State can still be sued by United States 9.323 ADA 9.323.10 Ex Parte Young actions permitted 9.323.20 State can still be sued by United States 9.323.30 State can still be sued in most state courts 9.323.40 ADA retaliation claims 9.324 Equal Pay Act 9.325 FMLA 9.326 42 U.S.C. § 1981 9.327 42 U.S.C. § 1983 9.328 Rehabilitation Act 9.328.10 Waiver based on receipt of federal funds 9.329 Title VII 9.329.10 Disparate impact claims 9.329.20 Religious discrimination claims 9.329.30 Retaliation claims 9.329.40 Sexual harassment claims 9.329.41 Same sex harassment claims 9.330 Sovereign immunity 9.331 Tribal sovereign immunity 9.331.10 ADEA does not apply to Indian Tribes 9.332 Sovereign immunity can be raised any time 9.333 Foreign Sovereign Immunities Act 9.334 Sovereign immunity does not apply to a suit brought by the EEOC 9.340 Legislative immunity [TOP] 9.400 Qualified immunity 9.410 Standard of review 9.420 General principles 9.421 Who can raise qualified immunity defense? 9.422 What is the test for determining entitlement to qualified immunity? 9.422.10 Defendant's subjective state of mind is not considered 9.422.20 Whether law is clearly established 9.422.21 Plaintiff has burden of proof that law is clearly established 9.423 Is qualified immunity determination a judge or jury question? 9.424 When is qualified immunity determination made? 9.424.10 Qualified immunity determination can be made at trial when factual issue must be decided before ruling can be made 9.425 Denial of qualified immunity is immediately appealable if the issue is a question of law as opposed to a factual dispute 9.426 Heightened pleading standard 9.430 Particular claims 9.431 Overview 9.432 42 U.S.C. § 1981 9.433 42 U.S.C. § 1983 9.434 Title VII [TOP] 9.500 Res Judicata (CLAIM PRECLUSION) / Collateral Estoppel (ISSUE PRECLUSION) 9.510 Standard of review 9.520 Standard for applying res judicata or claim preclusion 9.521 Same cause of action 9.521.10 Denial of leave to add a claim can constitute the first suit 9.522 Whether privity exists 9.522.10 Virtual representation 9.522.20 Control 9.522.30 No privity between a private party and a governmental agency because agency's interests are broader 9.523 Whether subsequent claim can be barred where right-to-sue letter had not been received during the pendency of the earlier claim 9.530 Standard for applying collateral estoppel or issue preclusion 9.531 State court finding 9.540 Miscellaneous issues regarding claim and issue preclusion 9.541 Employee's use of res judicata 9.542 State administrative findings 9.543 Whether plaintiff can pursue state administrative remedies and then pursue a federal cause of action for remedies that were unavailable in the state proceedings? 9.544 What if plaintiff could have pursued discrimination claim in state proceedings? 9.545 Rooker-Feldman doctrine [TOP] 9.600 Judicial Estoppel 9.610 Defining / proving judicial estoppel 9.620 Representations made in regard to Social Security or other disability benefits 9.621 ADEA 9.622 ADA 9.630 Workers' compensation 9.640 Others representations of disability 9.650 Failure to disclose employment discrimination claim in bankruptcy court 9.651 Cause of action belongs to bankruptcy trustee [TOP] 9.700 General defenses 9.710 Ability tests 9.720 Bona fide occupational qualification 9.721 Positions for which BFOQ defense applies 9.721.01 Correctional officer 9.722 Age as a BFOQ 9.723 Defense available when employee is pregnant 9.730 Business necessity 9.731 Specific cases 9.731.01 Police officer's ability to run 9.740 Collective bargaining agreement 9.750 Merit system 9.760 Seniority system 9.761 Proving a non-bona fide seniority system 9.770 Advice of counsel 9.771 Governmental entity, not individual defendant, holds attorney/client privilege [TOP] 9.800 Other defenses 9.810 Price Waterhouse or mixed-motive defense 9.820 Laches 9.821 Standard of review 9.822 Laches may only bar the older part of a harassment claim 9.830 Waiver of claim [TOP]


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