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Employment Discrimination
St. Louis University School of Law
McCormick, Marcia L.

Professor Marcia McCormick, Employment Discrimination, spring 2011


703(a)(1) It is an unlawful employment practice for an employer to (1) fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges or employment because of an individual’s race, color, religion, sex, or national origin.

DT occurs when the employer treats some people less favorably than others b/c of the person’s race, religion, sex, color or national origin. Proof of discriminatory motive [intent] is critical, although in most situations, it can be inferred from the mere fact of difference in treatment. Teamsters

Race: scientists have said there is no biological definition of race. But, most people think race has biological components. People tend to define race as a set of inherited characteristics, such as skin color, facial features, hair type, and eye color.

Color: employees of the same race may be treated differently b/c of their skin tone; light skinned vs. dark skinned African Americans, Asians, or Hispanics.


Sex: Title VII does not prohibit sexual orientation discrimination, but it does prohibit discrimination based on sex stereotyping at the workplace.

National Origin: country where P was born or country where P’s ancestors came from.

Hishon v. King & Spalding (terms and conditions must be equally doled out)

Associates were advanced to partner after 5 years. P was rejected from partnership and asserted that partnership was a term, condition, or privilege of employment.

Analysis: Once a contractual relationship of employment is established, the provisions of Title VII attach and govern. The employment K may be written, oral, formal, or informal. An informal K may arise by the simple act of handing an applicant a shovel and providing a workplace. Only employees have Title VII claims.

Rule: (1) A benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion.

Minor v. Centocor (adverse employment action)

Ps supervisor required her to visit sales accounts 2x a month. P began to experience medical problems.

Analysis: To find adverse employment action, it is essential to distinguish between material differences and the day to day travails, which are disappointments that are not so central to the employment relation that they amount to discriminatory terms.

Rules: (1) extra work CAN be a material difference in the terms and conditions of employment b/c it is tantamount to decreased pay. (2) It is not clear whether there must be an economic impact.


An individual claim of DT discrimination involves a dispute in which the employer took adverse employment action b/c of a solitary unlawful motivation. P must prove that the adverse action occurred b/c of P’s protected status. Single motive DT discrimination claims arise under 703(a)(1).

Single Motive Direct Evidence Cases

(1) P presents direct evidence (oral comments, written statements, or D’s admission) that D intended to discriminate b/c of P’s protected status. But-for Causation: But for P’s protected status, P would not have been subject to adverse employment action.


a. BFOQ (total defense)

b. mixed motives (partial defense, limited remedies, no damages)

c. rebut intent (we didn’t not hire P b/c of status, we hired someone who was more qualified)

*D’s motivation—why D made the decision—is the controlling question.

Direct Evidence: Evidence is direct when it requires no inference to establish the employer’s state of mind. When D says, “I’m not promoting you b/c you are a woman, and a woman is not right for the job,” that is direct evidence. It links the reason for the decision–protected status–with the adverse action. This statement is not direct evidence: “I’ve decided not to promote you. You’re not going to cry, are you? Women are so emotional. I just hate that.” B/c the statements are not explicitly linked to the decision, an inference is required to say that protected class caused the decision. If the speaker is NOT the decision-maker and says “P wasn’t hired b/c she’s a woman” that is not direct evidence b/c we have to infer that the speaker is accurately stating the decision-maker’s intent. And, if the speaker is a coworker, the statement may not be persuasive circumstantial evidence of intent.

Direct Evidence Considerations

(a) What did the agent say?

(b) Does the statement show illegitimate considerations?

– Speaker’s meaning may depend on context, inflection, tone, custom, and usage.

– Could a reasonable jury conclude that the intent to discriminate was implicit?

(c) Is the statement closely connected in time w/ the adverse employment action?

(d) Did the speaker mean what he said?

(e) Expert Testimony of Stereotyping (PW)

Slack v. Havens (single motive, direct evidence)

Black women were told they’d have to clean, but their white co-worker did not. The supervisor told them that they had to do the work or else; colored people should stay in their place; colored folks are hired to clean b/c they clean better. The women were fired.

Analysis: The only evidence that surfaced regarding motives consisted of statements by the supervisor. There was a causal relation between the supervisor’s apparently discriminatory conduct and the firings. Had the supervisor not discriminated against Ps by demanding that they perform work he would not require of a white female employee, Ps would not have been faced with the unreasonable choice of having to choose between obeying his discriminatory work order and the loss of their employment. By backing up the supervisor’s ultimatum, top level management ratified the discriminatory conduct.

Rules: (1) Animosity [animus] is NOT required. (2) Unequal treatment is not in and of itself a statutory violation.


McDonnell Douglas v. Green established a three-step analytical structure for cases that become known as single motive or circumstantial evidence cases. The first step requires P to establish a PFC case of discrimination, that is, to put on enough evidence to create an inference that the employer discriminated. Once the PFC is established, D, at the second step, has the burden of production to put into evidence a nondiscriminatory reason for the alleged discriminatory decision. Finally, P has the opportunity in the third step to prove that the supposed reason was really a pretext. A PFC raises a mandatory inference of impermissible discrimination b/c we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors. The purpose of the PFC is to filter out common nondiscriminat

(iv) statistics as to D’s hiring practices and patterns.


703(m) An unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.

Employment decisions are usually the result of numerous factors, some of which may be discriminatory, and some of which may be legitimate. When one of the employer’s motivations is unlawful under Title VII and another is lawful, a mixed motive case exists. A fact-finder must conclude that both lawful and unlawful reasons led to the adverse employment action. To obtain a mixed motives instruction, P needs to present sufficient evidence for a reasonable jury to conclude by a preponderance of the evidence that race, color, religion, sex, or national origin was a motivating factor for any employment practice.

PW created a separate framework for analyzing individual DT cases. P introduced into evidence written evaluations and oral comments that were made in the partnership process, which suggested that her gender played a role in the decision to turn her down. The firm insisted that she was denied partnership b/c of her lack of interpersonal skills. The court credited both explanations. The court was confronted w/ a mixed motive case, one in which the challenged decision implicated both legitimate and discriminatory reasons. Brennan said P need only prove, by a preponderance of the evidence, that her gender played a motivating part in the challenged decision. O’Connor’s approach differed in two ways: (1) she required P to show that the impermissible factor was a substantial rather than motivating factor, and (2) to trigger the PW analysis, she required direct evidence of discrimination.

*McDonnell Douglas (getting to a discriminatory motive by process of elimination) tends to involve a single motive and PW involves mixed motives.

(1) P proves her protected status motivated D’s adverse action (direct or circumstantial)

– P must point to D’s intent!

– PFC case of DT discrimination under McDonnell Douglas (eliminating the most likely nondiscriminatory reasons, leaving discrimination as the most likely explanation)

– Comparator evidence: people outside P’s class were treated better than P

– Comments by a decision-maker that relate to P’s class

– Actions most easily explainable as based on stereotypes

– D violated its own procedures

– Statistical evidence that all/most people in P’s class were treated badly


– No intent; no adverse action; P’s allegations are false

– Exception: no discrimination b/c of valid AA plan