Employment Discrimination Outline

Employment Discrimination Outline – Avery 8th Edition – Leonard Fall 2012
 
A.      McDonnel Douglas proof structure: Prong 1 – PL’s prima facie case
1.      PL is a member of a racial minority
2.      PL applied for and was qualified for the job, but
3.      Was rejected
4.      While the job remained open
B.      Prong 2 – Defendants Response
1.      DF must articulate a legitimate non-discriminatory reason (LNDR).
2.      DF has burden of production not persuasion
C.      Prong 3 – Pretext
1.      PL must respond by offering evidence that the LNDR is a pretext for discrimination
2.      Most courts interpret pretext to mean a lie
 
Important: McDonnel Douglas framework not needed if there is direct evidence of discrimination
 
–          Furnco Construction – (black workers want a job in the blast furnace, but you gotta know someone to get hired) demonstrates a fundamental clash of views about the nature of equality. The circuit court favored equal opportunity and the Supreme Court reversed in favor of equal treatment.
 
–          Burdine – case holds that the DF does not have to prove its LNDR by a preponderance of the evidence (they just have a burden of articulation).  The lower court raised the standard in efforts to make the burden borne by the plaintiff easier. The opinion serves as “a Funnel” because it narrows the issues to be litigated in the case.
 
–          St. Mary’s Honor Center v. Hicks – (black working in halfway house, and he has satisfactory performance until reorganization brings on a wave of violations and eventually gets fired) – D says P was fired because he broke too many rules. Under Burdine, this meets the D’s standard. However, this LNDR turns out to be a lie. The court decides that the lower court erred by ruling that P was entitled to summary judgment when the LNDR turned out to be a pretext.  So Hicks takes away P’s ability to win quickly.
 
–          Important Notes: Reeves case, n. 8 pg. 130 (“me too” evidence is appropriate as long as its relevant), pg. 131 (“same actor defense” – accepted as evidence to infer that firing had no discriminatory motive), pg. 133 (reverse discrimination – McDD doesn’t apply to white males, there has to be something extra ie. “special background circumstances” proving that ER discriminates against majority)
 
 
 
 
–          Mixed Motive Claims
–          Price Waterhouse v. Hopkins – There was direct evidence of gender discrimination, but also evidence of appropriate motives in not promoting her to partner.
–          PW mixed motive formula under Title VII:
1.      P demonstrates by a preponderance that gender/race/NO was a motivating factor (causation bar is lowered)
2.      Burden of persuasion shifts to D to prove by a preponderance that it would have made the same decision absent the discrimination (not at all like LNDR under McDD, called “same result defense”)
3.      If so, then liability is avoided
–          Amendments in 1991 change this formula: Sec. 703(m), Sec. 706(g)(2)(b): if the employer can show that an individual would have been fired anyway (without racial bias) then he does not escape liability, only limits remedies to injunctive relief and attorney fees.
 
–          Desert Palace v. Costa – Costa is the only woman in a teamster shop and is mistreated by coworkers and management. The trial judge does not require direct evidence for Mixed Motive, as Plaintiff’s evidence is only circumstantial. The court holds that circumstantial evidence is sufficient in Mixed motive cases.
 
704(a) – Retaliation statute
–          Methods of proof of retaliation: prima facie case
–          1. PL was engaged in a protected activity
–          2. PL suffered an adverse action at the hands of her employer
–          3. A causal link exists between the protected activity and the adverse action
 
–          After P makes out a pf case, then burden shifts to the Er to come up with a LNDR, and then burden shift back to P to prove pretext
 
–          Scope of coverage in protected activity: filing a claim with the EEOC, testifying in a hearing, encouraging coworkers to file, aids in an investigation,
 
–          Pettway – a PL is protected even if he makes false or defamatory statements (PL baselessly accused his employer of bribing the EEOC official).
 
–          Important: note 2 p 167. Participation in strictly internal investigation is not protected (Warren), but if the EEOC is involved, then participation is protected (Clover).
 
–          Thompson v. North American Stainless: Employer fires P because his wife filed a discrimination claim. Even though the statute only provides for first party claims, they opened up a claim to P because otherwise employers could intimidate people from filing a claim by going after their family members. The court leaves open what kind of third party relationships would be protected from retaliation (boyfriend? First cousin? Classmate?).  Title VII permits any “person aggrieved” to bring suit, so the court uses “zone of interest” standard to determine who can bring suit.
 
–          Note: Differing circuit views on whether retaliation claims can proceed under mixed motive framework
 
–          Retaliation: Opposition Clause Claims
–          Crawford v. Metro Gov’t : P participates in an internal investigation of supervisor abuse