* all cases under Title VII, therefore, must have 15+ employees*
(preponderance of evidence = more likely than not)
A prima facie case burden of proof ALWAYS stays under plaintiff, burden of production follows the defendant. i.
member of protective class
something bad happened suffered adverse action
job remained open, or hired someone else
burden shifted to defendant b.
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.
pretext is not enough
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
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
BONA FIDE OCCUPATIONAL QUALIFICATION (Price Waterhouse)
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
Neutral policy on its face
Has disparate impact on protected class
Prove through statistics
Majority = 32
Minority = 12
80% x 32 = 25.6
25.6 > 12 adverse impact
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
hostile environment that you don't want to work in
Plaintiff is a member of a protected class
Harassment/conduct is severe & pervasive
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
SEXUAL HARASSMENT (Cline)
Quid Pro Quo (QPQ)
Conduct is unwelcome
Sexual in conduct
Tangible employment action (termination, emotional reaction, etc) 2.
Hostile Work Environment
Conduct is unwelcome
Conduct is of sexual nature
Conduct is severe or pervasive (both POV)
From subjective viewpoint plaintiff must believe
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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