Disparate Treatment-703(a)(1) C. EE show that ER rejected an available
Privacy concerns and Therapeutic concerns
Single motive-McDonnell Douglas
A. EE’s Prima Facie Case
1. Mem of protected class 2. Applied & qualified
3. Rejected despite qualifications
4. Job remained open OR white men get the job
B. ER’s Rebuttal: Burden of production to
articulate legitimate, non-discriminatory reason
C. EE demonstrate ER’s proffered reason was
pretextual and adverse action motivated by
discriminatory animus [ultimate burden of proof]
Pretext Maybe: Establishment of pretext along
with elements of prima facie case may, but does
not require sustain a finding in favor of P (adopted
by SC in St. Mary)
Pretext Plus: needs additional evidence
Mixed Motive-Price Waterhouse, §703(m)
A. Plaintiff must show that xx was a motivating
factor for any employment practice. Can use direct
or circumstantial evidence
B. Employer’s Defense: can limit Plaintiff’s
recovery by a preponderance of the evidence that it
would have made the same decision without
considering the unlawful factor. (Burden of proof)
The Cat’s Paw Theory-Staub
1. Acting within the scope of their employment
2. Motivated by discrimination
3. Their actions were causal factors underlying
ER’s decision
4. SV had the specific intent to cause ER’s
decision
Pattern or Practice Case-707(a), 703(j)
An ER has engaged in a pattern (or practice) of
intentional discrimination and that pattern is
primarily demonstrated through the use of statistic.
Disparate Impact-703(a)(2)
A. EE make prima facie case to show a particular
employment practice that has a disproportionately
adverse impact on employees with protected
characteristic [EE may show elements no capable
of separation for analysis]
B. ER has the burden of proof showing the
challenged practice is job related for EE’s position
and consistent with business necessity
c.
alternative job practice that (1) results in a less
disparate impact and (2) serves the ER’s
legitimate needs
Discrimination to Avoid DI (Ricci)
Before ER can engage in intent’l discrim. to avoid/
remedy an unintent’l DI, ER must have strong
basis in evidence [more than a prima facie case] to
believe it will be subject to disparate-impact
liability if it fails to discriminatory action
Equal protection: McDD applies but not mixed
motive, must prove dis. intent; Washington v.
Davis: an official action that results in DI not
UNCONST
§ 1981: Prohibits intentional discrimination based
on race/ancestry only. Follows McDD, etc. proof
structure, not for mixed motive. no exclusions
based on ER size limit.
Discrimination Because of Sex
Can’t make generalizations re: class (Manhart)
Sex Stereotyping-Price Waterhouse
When ER penalized a person because their
appearance and behavior differed from stereotypes
associated with their gender-> discrimination for
not conforming to sex stereotypes.
Stereotyped remarks can be evidence that gender
played a part but EE must show that ER relied on
her gender in making the decision
The BFOQ Defense-703(e)
For express discriminatory policy on basis of
religion, sex, or national origin. (Not for race or
color), Two-step test:
1. whether sex is so essential to job performance
that a member of the opposite sex simply could not
do the same job
2. whether the requirement is reasonably necessary
to the essence of the employer’s business. [a more
stringent showing than “job-related” test]
-The business "essence" inquiry focuses on the
particular service provided and the job tasks and
functions involved
-Extremely narrow exception allowed when
a. Customer preference tied to authenticity
b. Customer preference for sex appeal
d. Safety concerns: Must be 3rd party concerns,
but that concern has to be essential to the business,
like customer safety. (Johnson Controls)
Discrimination Because of Pregnancy-701(k)
A. Prima Facie Case
1. affected by pregnancy 2. Sought
accommodation 3. ER did not accommodate 4. Did
accommodate others “similar in ability or inability
to work”
B. ER’s Legitimate nondiscriminatory reason.
(Cost or convenience can’t be a legitimate reason)
C. Pretext: P show that ER’s policies impose a
significant burden on pregnant workers, and that
ER’s reason are not sufficiently strong to justify
the burden but rather-when considered along with
the burden imposed give rise to an inference of
intentional discrimination
Dress, Grooming and Appearance 
ERs have choice on how to run business; can
adhere to cultural norms
Jespersen: undue burden/sex stereotyping
Catastrophe Management: race-neutral grooming
policy. Title VII protects persons in covered
categories with respect to their immutable
characteristics, but not their cultural practices.
Harassment
Harassment Because of Sex
Hostile Work Environment
Prima Facie case:
1. Belong to a protected class
2. Subjected to unwelcome sexual harassment
3. The harassment was based on sex
motivated by sexual desire; sex-specific
and derogatory terms; comparative
evidence of treatment of both sexes;
Sexual stereotyping
4. Harassment was sufficiently severe or pervasive
enough to alter the conditions of employment and
create a hostile or abusive work environment,
under both an objective and subjective standard.
The frequency; The Severity; Whether it was
physically threatening or humiliating or mere
offensive utterance; Where it unreasonably
interferes with an EE’s work performance; Impact
on EE’s psychological well being
Quid Pro Quo: When supervisor conditions..
Employer Liability
General rule is that sexual harassment is not within
the scope of employment. Liability when:
1. §219(2)(a) If ER acts with tortious intent or if
the agent’s high rank in the company makes him or
her the ER’s alter ego
2. (2)(b) coworker harassment, tort is attributable
to ER’s negligence--EE needs to show ER knew or
should have known about the conduct and failed to
stop it--ER’s defense: showing of reasonable care
3. (2)(d) supervisor harassment, Aided in the
agency relation standard
Tangible ER action→ vicarious liability, no
defense
No tangible ER action → vicarious liability but ER
has affirmative defense, ER needs to show that
ER exercised reasonable care to prevent and
correct promptly any sexual harassing behavior;
And That the EE unreasonably failed to take
advantage of any preventative or corrective
opportunities provided by the ER to avoid harm
otherwise
Tangible Employment Action: an official act of
the ER that constitute a significant change in
employment status.
Vance: An EE is a supervisor if he or she is
empowered by the ER to take tangible
employment actions against the victim
Constructive discharge: working conditions so
intolerable that a reasonable person would have
felt compelled to resign. An employer may defend
by showing (1) that it had installed a readily
accessible and effective policy for reporting and
resolving complaints of sexual harassment, and (2)
that the plaintiff unreasonably failed to avail
herself of that preventive or remedial apparatus.
Sexual Orientation and Gender Identity
Discrimination
Bostock: “But-for causation,” If changing the EE’s
sex would have yielded a different choice by the
ER, a statutory violation has occurred
Retaliation-704(a)
A. P’s prima facie stage
1. She was engaged in a statutorily protected
activity (Participation in EEOC process or
opposition to discrimination)
2. Materially adverse action at hands of employer
(that dissuade a reasonable worker from making or
supporting a charge of discrimination, not limited
to ones that affect the terms and conditions of
employment)
3. That a causal link exists between protected
activity and adverse action. But-for causation
(Nassar) [Proven ERlack of knowledge will be
fatal] - Where mere temporary proximity is enough
to establish causal link, it must be very close.(
Breeden)
B. Defendant/Employer’s rebuttal by articulating
legitimate, non-retaliatory reason
C. Plaintiff’s demonstrate ER’s proffered reason
was pretextual and the adverse action was
motivated by retaliatory animus
Opposition: must make clear, specifically or in
context, that the P is opposing an employment
related practice which she reasonably good faith
believes is discriminatory. can occur when
individual, in response to questions of an
employer, reports discrimination (Crawford)
Participation: Protects EEs regardless of
underlying merits of the claim, Most courts find
this does not apply to internal investigations if no
EEOC is involved
Religious Discrimination- §701(j)
prima facie case (religious accommodation)
1. P had bona fide religious belief/practice that
conflicts with employer requirements--ER can
question the veracity and the sincerity of the belief
2. P informed the ER*-ER may be liable for failing
to hire when motivated by concerns about having
to accommodate religious practice
3. ER failed to reasonably accommodate
ER can argue that they made reasonable
accommodation OR such accommodation cause
undue hardship- more than a de minimis cost, not
just $, ER’s burden in conducting its business
702(a), R. org, R. Carrying on its activities
(religious & secular); 703(e)(1), ER, R, BFOQ;
703(e)(1), R. Educ., R., any EE; Ministerial
exception(1st amend, judicially created), R. org.,
All types, “minister” [role in conveying the
Church’s message and carrying out its mission]
1st amend -> ministerial exception that precludes
application of anti-discrimination laws to claims
concerning employment relationship between a
religious institution and its minister
English-only An employer may have a rule
requiring employees only speak in English at
certain times where the employer can show the
rules is justified by business necessity(Pacheco)
Age Discrimination
DT: no mixed motive, P needs to show but-for.
Analytically distinct doctrine, whether involve the
problem of inaccurate & stigmatizing stereotypes
DI is allowed but defense is the differentiation was
based on reasonable factor other than age(Smith)
Disability Discrimination
Covers DI, DT, McDD and requires employers to
make a reasonable accommodation if the
accommodation doesn’t impose an undue
hardship, [significant difficulty or expense]
1. If person has, had, or is regarded as having a
physical or mental impairment that substantially
limits a major life activity
2. Who is otherwise qualified for the position in
question: Can perform the essential function of the
job with or without a reasonable accommodation
3. ER refused to make such accommodation and as
a result, she suffered an adverse employment
action (ER has the duty of an interactive process)
Barnett: not required to offer accommodations
violate seniority system rules
Circuit split on best qualified policy
Affirmative Action
Title VII does not prohibit AA when there is a
manifest imbalance, look at 1.purpose of the plan
(break down..) 2. do not unnecessarily trammel the
interest of other EEs 3. a temporary measure, or
flexible (Weber & Johnson)