Employment Discrimination

Topics: Social Security Disability Insurance, Legal burden of proof, Contract Pages: 9 (2097 words) Published: February 16, 2008
* all cases under Title VII, therefore, must have 15+ employees*

(preponderance of evidence = more likely than not)

a.A prima facie case – 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 – suffered adverse action
iv.job remained open, or hired someone else…if succeed…burden shifted to defendant b.Legitimate/nondiscriminatory reason
i.defendant needs to provide enough evidence (legitimate) as to their actions…then shifted back to plaintiff c.Prove reason is pretext – 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 – pretext can infer discrimination…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)– 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) – Costa says that plaintiff can use circumstantial evidence to prove mixed motive case

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

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 – is considered unlawful unless they prove that policy is a business necessity.

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

does not have to be sexual in nature  no tangible employment actions…picked on…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 – 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

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 – plaintiff must believe
ii.From objective viewpoint – reasonable person must believe in that situation. d.Same sex harassment is actionable (Oncale) – it could possibly be illegal (before Oncale, same sex harassment was not unlawful)…must still be because of sex, not because of sexual orientation. e.Harris added that for conduct to be severe or pervasive,...
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