20.1 Federal Civil Rights & Employment Discrimination

20.1 Federal Civil Rights & Employment Discrimination

[!NOTE] NALS PP Exam Blueprint Focus: Federal civil rights and employment discrimination appears in the Part 4 Legal Knowledge list of areas of law, alongside labor and employee rights as a separate entry. The paralegal work in this field is dominated by deadlines, and the deadlines are unforgiving.

The Statutory Framework

Many states and municipalities extend protection further — to sexual orientation and gender identity by express statute, marital status, or lawful off-duty conduct — and often apply to smaller employers than the federal thresholds reach. A paralegal screening a matter checks the state statute as well as the federal one, because a five-employee workplace outside Title VII may be squarely inside the state act.

Administrative Exhaustion: The EEOC Process

A Title VII, ADEA, ADA, or GINA plaintiff generally must exhaust administrative remedies before filing suit.

[!WARNING] The 90-day right-to-sue clock is the most consequential deadline in this practice area. It runs from receipt, it is short, and it is jurisdictional in effect for practical purposes. A paralegal receiving a right-to-sue letter calendars the deadline the day the letter arrives, records the date of receipt with evidence, and flags it to the supervising attorney immediately.

The continuing violation doctrine matters for timing. Discrete acts — a termination, a failure to promote, a demotion — each start their own clock on the date they occur. A hostile work environment claim, by contrast, is a single unlawful practice, so the charge is timely if any act contributing to the hostile environment falls within the filing period.

Section 1981 claims do not require EEOC exhaustion and carry their own longer federal limitations period, which is why a race discrimination case is often pleaded under both Title VII and Section 1981.

Disparate Treatment

Disparate treatment is intentional discrimination: the employer treated the employee less favorably because of a protected characteristic.

Where there is no direct evidence, courts apply a burden-shifting framework:

1. Plaintiff's prima facie case — membership in a protected class, qualification for the position, an adverse employment action, and circumstances giving rise to an inference of discrimination, commonly that a similarly situated person outside the class was treated more favorably.
2. Employer's burden of production — articulate a legitimate, nondiscriminatory reason. This is a burden of production only, not persuasion.
3. Plaintiff's showing of pretext — evidence that the stated reason is not the real reason, through shifting explanations, comparator evidence, deviation from policy, temporal proximity, or statistical patterns.

Direct evidence — a decision-maker's explicit statement tying the action to a protected characteristic — bypasses the framework entirely.

Disparate Impact

A disparate impact claim challenges a facially neutral practice that falls more harshly on a protected group. Intent is not required.

Typical targets: physical strength and agility requirements, written examinations, height and weight minimums, credit history screens, and blanket criminal-record exclusions.

Harassment

Employer liability turns on the harasser's role:

• Supervisor harassment with a tangible employment action — the employer is strictly liable.
• Supervisor harassment without a tangible action — the employer may raise an affirmative defense by showing it exercised reasonable care to prevent and correct harassment and that the employee unreasonably failed to use the employer's complaint procedures.
• Coworker or third-party harassment — the employer is liable if it knew or should have known and failed to take prompt, effective corrective action.

That affirmative defense is why the existence, communication, and actual operation of an anti-harassment policy and complaint procedure is the first document set a paralegal collects in a harassment matter.

Retaliation

Retaliation is the most frequently filed EEOC charge category. Elements:

1. Protected activity — opposing an unlawful practice or participating in a charge, investigation, or proceeding.
2. A materially adverse action — one that would dissuade a reasonable worker from making or supporting a charge. This is broader than the adverse-action standard for the underlying discrimination claim and can include actions outside the workplace.
3. A causal connection.

Retaliation can be proved even where the underlying discrimination claim fails, provided the employee had a reasonable, good-faith belief that the practice opposed was unlawful.

Accommodation Duties

Disability

The ADA requires reasonable accommodation of a qualified individual with a disability unless doing so imposes an undue hardship. A disability is a physical or mental impairment substantially limiting a major life activity, a record of such an impairment, or being regarded as having one. Coverage is construed broadly.

The interactive process is the employer's obligation to engage in an individualized dialogue about possible accommodations. Common accommodations: modified schedules, leave, equipment, job restructuring, telework, and reassignment to a vacant position.

Religion

Title VII requires accommodation of a sincerely held religious belief, practice, or observance unless it would impose an undue hardship on the conduct of the employer's business — a standard the Supreme Court has clarified means a substantial burden in the overall context of the employer's business, not merely a trivial cost.

Remedies

The Paralegal Workstream

1. Deadline control — charge deadline, right-to-sue deadline, and the state agency deadlines, each calendared separately with reminders well in advance.
2. Personnel file assembly — application, offer letter, reviews, discipline, pay history, handbook acknowledgments, complaint records.
3. Comparator analysis — identifying similarly situated employees outside the protected class and documenting how each was treated.
4. Damages compilation — wage loss calculation, mitigation records, benefits valuation, job search documentation.
5. Position statement and rebuttal support — organizing the employer's response or the charging party's rebuttal to it.