Professional Documents
Culture Documents
Causes of Action:
Discrimination basis of race, sex, color, religion, national origin (Title VII) DT and DI
Includes pregnancy, dress and grooming, family responsibility, sexual orientation, harassment (QPQ,
HWE)
Status-based v. conduct (retaliation)
McDonnell Douglas:
PF case:
1. Member of protected class
2. Applied and qualified for job seeking/met ERs expectations
3. Rejected/demoted/discharged despite qualifications
4. Position remained open and ER continued to seek applicants with same
qualifications/ER sought replacement
5. Some might require similarly situated comparator
Rebuttal (Burdine)
o ER must articulate legit, non-discriminatory reason for action just has to be admissible,
not necessarily true (St. Marys)
o Burden of production
Pretext [pretext may, pretext plus]
o P has ultimate burden of persuading court of intentional discrimination
Can show proferred reason is unworthy of credence OR
Discriminatory reason more likely motivated ER
DT Mixed Motive Post Costa (Price Waterhouse, CRA) More than one factor for decision
PF case: Higher burden of persuasion than MD
o Protected category membership was motivating factor for any employment practice
o Direct of circumstantial evidence allowed (post-Costa)
Rebuttal:
o ERcanlimitPsrecoverywithsamedecisiondefense(iffailsPrecoversfully)
o *PriceWaterhousesamedecision=noliabilityforER,stillstandardforretaliation
o SameActordefensejustcreatesinference
Merged doctrine - MD + Mixed analysis after pretext fails
Can survive sum judgment after pretext fails by showing illegitimate reason was motivating
factor
Defenses to Disparate Treatment Claim (BFOQ, normal defense, same decision, same actor)
BFOQ -- 703(e)
General BFOQ (Gender Authenticity & Sex Appeal). See Hooters and Southwest.
1.
Issexsocriticaltojobperformancethatallmembersoftheoppositesexareunabletoperform
thejob?
2.
Istherequirementofonesexsonecessarytotheessenceofthebusinessthatthebusinesswould
beunderminedifemployeesofoppositesexarehired?
Safety BFOQ. See Dothard and Johnson Control.
Show that there is a third-party safety concern for one sex and the third partys safety
relates to job performance. Dothard, Johnson Control
Privacy BFOQ
Need factual basis for believing hiring members would undermine business, privacy interest must
be entitled to protection, no reasonable alternative exists to protect privacy interest
Therapeutic BFOQ
NO Racial BFOQ. See Ferrill and Chaney
Participation (Burlington)
Opposition (Crawford)
PF case:
1. P engaged in statutorily protected activity
2. Suffered materially adverse action at the hands of the employer (materially adverse = would
dissuade reasonable worker from participating in activity Burlington Northern)
3. Causal link between protected activity and adverse action
4. In some courts employer needs knowledge of protected activity
Rebuttal:
ER must articular legit, nondiscriminatory reason for adverse action
Pretext:
Provethatprofferedlegitreasonwasuntrueandadverseactionmotivatedbyretaliatioryanimus
Disparate Impact facially neutral practices, harmful impact on protected group 702(a)(2)
PF:
ID employment practice that causes impact on protected class (specific practice unless cannot be
separated then can look at whole post CRA)
Establish impact is sufficiently adverse 4/5ths rule for success rate of majority vs. minority
Rebuttal:
Provechallengedpracticeisjobrelatedandconsistedwithbusinessnecessity
BurdenofpersuasiononceGriggscodified
Test validation (Griggs) content or criterion based to show success in work, or real work scenario
Pretext
Show alternative thats less harmful or that the policy is applied inconsistently
Disparate Impact
Post PDA- AT&T v. Hulteen; Troupe v. May Dept. Stores.
Troupe - Doesnt require preferential treatment or accommodations
Pre PDA - General Electric v. Gilbert, Geduldig v. Aiello (overturned)
Family Responsibility Discrimination (lots of statutes)
Title VII Disparate Treatment, Disparate Impact, and Retaliation, FMLA, ADA
Sexual harassment (HWE) - making employers dress provocatively (EEOC v. Sage Realty Corp).
Harassment (Sexual and non) disparate treatment, QPQ or HWE (Harris v. Forklift)
PF case
Member of protected class
Subject to unwelcome sexual harassment
Harassment based on membership in projected class (ER could argue equal opportunity
harasser defense here
Harassment was sufficiently severe or pervasive to affect a term, condition, or privilege of
employment (Harris factors frequency of conduct, severity, whether physically threatening or
humiliating or mere offensive utterance, whether unreasonable interferes with work performance,
whether resulted in pysch harm)
Respondeat Superior employer liable for conduct by supervisor (unless HWE)
Rebuttal
Burden of persuasion articulate legit nondiscriminatory reason (not likely)
Affirmative defense for HWE: ER exercised reasonable care OR EE unreasonably failed to take
advantage of any preventive or corrective opportunities.
No defense if Tangible Employment Action strictly liable (post Ellerth and Faragher)
National Origin
DIclaims(Englishonlypolicies)
PFcase:ifERrequiresEEStospeakEnglishatcertaintimes,presumptivelylawfulunderEEOC,
orifallthetime,presumptivelyunlawful.
o Mustidentifypracticeandsufficientlyadverseimpact
o HelpstohaveevidencethatERexhibitedotherformsofracism
Rebuttal:customerpreference,ifsufficientlyrelatedtojobperformance,qualifiesasbusiness
necessity
o Alsocanclaimsafety,cooperation,supervisormonitoring
Pretext:
o Underminebusinessnecessityorshowalternativewouldhavelessofanadverseimpact
ADA (also rehabilitation act just for gov)
Reasonable accommodation ADA claim, ADAAA requires consideration with amelioration
PF:
o Has disability within meaning of ADA (substantially limits major life activity)
o Qualified individual (requisite skill/training)
o Suffered adverse employment action as result of disability inference of discrimination
Rebuttal:
o Articulate legit, nondiscriminatory reason for failure to accommodate (unreasonable,
undue burden, not efficacious)
Pretext stage