Employment Discrimination

* all cases under Title VII, therefore, must have 15+ employees*

INTENTIONAL DISCRIMINATION

(preponderance of evidence = more likely than not)

PRIMA FACIE

1. Burdine/McDonnell

a. A prima facie case Ð'- burden of proof ALWAYS stays under plaintiff, burden of production follows the defendant.

i. member of protective class

ii. minimally qualified

iii. something bad happened Ð'- suffered adverse action

iv. job remained open, or hired someone elseÐ'...if succeedÐ'...burden shifted to defendant

b. Legitimate/nondiscriminatory reason

i. defendant needs to provide enough evidence (legitimate) as to their actionsÐ'...then shifted back to plaintiff

c. Prove reason is pretext Ð'- jury can file for plaintiff = plaintiff wins (show pretext, you win. Don't need discrimination at all)

2. Hicks

a. pretext is not enough

b. need pretext + some evidence of discrimination Ð'- pretext can infer discriminationÐ'...but still need direct evidence. (nowadays, standards is at Hicks)

MIXED MOTIVE (Price Waterhouse)

legitimate or illegitimate (both parties have burden of proof)

1. Discrimination was a substantial and a motivating factor (plaintiff)

2. Affirmative Defense (defendant)Ð'- would have made the same decision in the absence of the discriminatory decision

3. Civil Rights Act of 1991

a. changed "substantial and motivating" to just "motivating" (lowered standards)

b. if plaintiff proves that discrimination was a motivating factor, then judge can award attorney fees, costs, and/or declaratory judgment

4. circumstantial evidence (statistics, indirect) v. direct evidence (admission, on tape, a memo) Ð'- Costa says that plaintiff can use circumstantial evidence to prove mixed motive case

BONA FIDE OCCUPATIONAL QUALIFICATION (Price Waterhouse)

1. This defense is only applies in cases of overt discrimination (intentional discrimination cases)

2. Employer has defense that says that the discriminating requirement is: "reasonably necessary to the normal operation of the particular business"

3. Qualification the employer states must go to the essence of the business

UNINTENTIONAL DISCRIMINATION (Griggs)

DISPARATE IMPACT = ADVERSE IMPACT

Discrimination against that protective class (i.e. minorities)

Disparate treatment is different. It is discrimination against the individual

1. Neutral policy on its face

2. Has disparate impact on protected class

3. Prove through statistics

a. Majority = 32

b. Minority = 12

c. 80% x 32 = 25.6

d. 25.6 > 12  adverse impact

4. Business necessity defense Ð'- is considered unlawful unless they prove that policy is a business necessity.

GENDER/SEX DISCRIMINATION

(same as Intentional Discrimination)  prima facie case of Burdine-Hicks or Mixed motive Ð'- demoted, terminated based on sex

GENDER HARASSMENT

does not have to be sexual in nature  no tangible employment actionsÐ'...picked onÐ'...hostile environment that you don't want to work in

1. Plaintiff is a member of a protected class

2. Harassment/conduct is severe & pervasive

3. Motivation: harassment because of gender Ð'- that harassment was motivated because of color, race, religion, national origin, sex

4. Could also be racial, religion, etc  but all gender based

5. Defense: equal opportunity harasser or Ellerth/Faragher Defense

SEXUAL HARASSMENT (Cline)

1. Quid Pro Quo (QPQ)

a. Conduct is unwelcome

b. Sexual in conduct

c. Tangible employment action (termination, emotional reaction, etc)

2. Hostile Work Environment

a. Conduct is unwelcome

b. Conduct is of sexual nature

c. Conduct is severe or pervasive (both POV)

i. From subjective viewpoint Ð'- plaintiff must believe

ii. From objective viewpoint Ð'- reasonable person must believe in that situation.

d. Same sex harassment is actionable (Oncale) Ð'- it could possibly be illegal (before Oncale, same sex harassment was not unlawful)Ð'...must still be because of sex, not because of sexual orientation.

e. Harris added that for conduct to be severe or pervasive, action does not need to psychologically harm the individual.

EMPLOYER LIABILITY (Ellerth)

1. QPQ: employer automatically liable

2. Hostile work environment

a. Affirmative defense employer must show:

i. Exercised reasonable care Ð'- reasonable care policy must show that they have a sexual harassment policy, in written form, disseminated (given out to employees), have alternate channels for reporting

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