Employment Discrimination Spark Sheet

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)

Discrimination on basis of Age (ADEA)

Discrimination on basis of Disability (ADA)

Also reasonable accommodation
Frameworks:
Disparate Treatment Intent to discriminate on race, sex, color, religion, national origin 703(a)

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

Retaliation -- 704(a), McDonnell Douglas or Mixed pre-Costa

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 Treatment to combat Disparate Impact- Ricci v. DeStefano.

OnlyifevidentiarybasisbehindbeliefthatbeingusedtocurbDIandnobusinessnecessity
Defenses to Disparate Impact Claim

Job-relatedness and Business Necessity 703(k)(1)(A)(i)

Bona Fide Seniority or Merit System 703(h) (AT&T v. Hulteen)

Professionally Developed Ability Tests (content, criteria)

Discrimination Because of Sex

Sex-Plus Framework (DT) (Jespersen)

PF case, show sex plus subclass (Phillips v. Martin Marietta)

DT + DI + Retaliation all frameworks

Sex Stereotyping (Price Waterhouse, City of LA v. Manhart [pension fund])
-Defenses depend on claim type BFOQ (DT), business necessity or bona fide seniority system (DI)
Discrimination Because of Pregnancy (PDA)

Disparate Treatment (Sex-Plus)

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

Philips v. Martin Marietta, Chadwick v. Wellpoint

Any family responsibility - elder, child, sickness, etc

Retaliation under FMLA adverse impact based on exercising right under FMLA
Discrimination Because of Sexual Orientation and Same Sex discrimination
Oncale - 3 possible evidentiary routes (Pre and post Oncale)
-Supervisor is homosexual, harassed in sex-specific terms showing general hostility, comparing
how harasser treated both sexes in mixed sex workplace
Forsexualorientation:useSex Stereotyping - gender identity, sex stereotyping, ie transgender (Ulane v.
Eastern Airlines, Smith v. City of Salem)
Dress and Grooming Standard Claims
DT(sex),PFcasecaninclude
Unequal burden between men and women (Jespersen)
Sex Stereotyping (Jesperson)
DI (race, religion, disability)
Clean shaven, height and weight reqs, etc (Bradley v. Pizzaco, Hollins, Frank v. United Airlines)

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

DT claim Use McD if allegation is intent to discriminate

Disparate impact claim When P alleges ER using standards, tests, other criteria that screens out people
with disability establish PF case that disabled, identify challenged practice, caused adverse effect
Failure to accommodate (Vande Zande v. Wisconson) ER has to do something positive
Meaning of disability:
1. Substantially limits Major life activity;
2. Have a record of disability
3. Be regarded as having a disability.
ADA Amendment 2008 (overturned Sutton and Williams)
ADEA no mixed motive
Disparate Treatment- Gross
PF case:
o P is in ADEA protected age group (over 40)
o Suffered adverse employment action
o Was qualified or performing job at level to meet legit expectations
o Person substantially younger was selected for position
Rebuttal:
o Articulate legit nondiscriminatory reason
o Burden of production (post Gross)
o Could be BFOQ, RFOA
Disparate Impact- Smith v. City of Jackson; and Meacham v. Knolls Atomic Power Laboratory
PF case:
o Identify specific practice/policy and that impact flows from it
o Establish that impact is adverse (statistical proof)
Rebuttal:
o Affirmative defense burden of persuasion that decision was based on RFOA
Retaliation
Has BFOQ and RFOA
o Bona Fide seniority system not intended to evade the Act