Employment Discrimination Outline

Employment Law Albiston Spring 2017

Individual Disparate Impact

Overview

Plaintiff has to prove:

Intent
Adverse Employment Action
Causation

Ways to Prove with circumstantial evidence

Pretext Theory – McDonnell Douglas

Policy: not meant to be a big hurdle
Flexible on the facts of each case
PF

PF case, generally:

(1) Member of a protected class

All races covered – Sante Fe Trail

(2) Apply and be qualified
(3) Rejected despite qualifications (adverse employment action), AND
(4) A causal connection between the adverse action and protected classification – after p not selected, position remained open/employer continued to seek applications; position filled by similarly qualified individual outside the protected class

this prong is flexible depending on the context

PF case, discriminatory discharge:

(1) P is a member of protected class;
(2) P suffered an adverse employment action;
(3) At the time the ER took the adverse employment action, P was performing at a level that met the ER’s legitimate expectations, AND
(4) The position was filled by a similarly qualified individual outside the protected class.

LNDR

Note that at this stage, ER has burden of production, NOT burden of persuasion.
ER does not need to show that it was actually motivated by the LNDR it offers. ER just needs to raise a genuine issue of fact as to whether it discriminated against P.
ER must meet this burden through introduction of admissible evidence. ER can’t just make up a reason with no support in the record.

Pretext

P must show:

LNDR not the true reason
Discrimination was the real reason

Evidence:

Not limited to evidence rebutting D’s proffered reason
Qualifications – distance between P and selected candidate
Reeves: D’s reason untrue plus PF case; holistic approach & “stray remarks”
Several other forms available

Other issues:

cats paw (Staub) – when is an employer responsible for the discriminatory acts of its employees
benign v. invidious motive

Mixed Motive

PF
LNDR
Pretext

Protected status was a motivating factor in the decision
Would D have made the same decision regardless? Partial defense

D’s proffered reason was only one of the reasons for its actions, and that discrimination was another reason (Price Waterhouse, Costa)

Risk: limits damages

Policy: still allow relief so some motivation to make the risk of arguing mixed motive and D was still bad actor so want to motivate employer’s to clean up their acts

Direct evidence no longer required (Desert Palace)
Not available for retaliation or ADEA

Intent to Discriminate

What is discrimination and how can it be proved

Intent to Discriminate, e.g. employer intended to treat individual differently than others because of prohibited ground (race, sex, etc.); unequal treatment because of protected category

McDonnell Douglas, Price Waterhouse

McDonnell Douglas Corp. v. Green: P was laid off as part of “general reduction” in ER’s workforce. After he was laid off, P protested his discharge and ER’s hiring practices that he alleged were racially motivated. ER publicly advertised for qualified mechanics. P re-applied for employment. ER turned down P’s application, alleging it rejected P b/c of his participation in the protests. P filed suit alleging that ER refused to re-hire him b/c of his race (black).

Held: Created burden-shifting framework. Here, P proved a PF case and should have been allowed to move forward with his claim.

Liability depends on whether the protected trait actually motivated the employer’s decision.
There must at least be different treatment because of a protected factor. Maybe it means conscious intent; maybe it includes unconscious biases as well.

The reason “to avoid pension vesting” was “legitimate” under the ADEA even though that reason would have violated ERISA.

Hazen Paper Co. v. Biggins: Decision by the company to fire an older employee solely because his pension benefits are close to vesting (based on years of service) does NOT constitute discriminatory treatment on the basis of age. Employee’s protected trait must have played a role in the process and had a determinative influence on the outcome. Here, the decision to fire was not the result of an inaccurate stereotype about age.

Issues of Proof

Indirect/Circumstantial Evidence: Evidence that, even if believed, only establishes a matter in dispute with the aid of an inference that links the evidence to the disputed fact.

Slack v. Havens: White fellow employee not required to clean (with no evidence that she was not as good a cleaner).
Hazen Paper Co. v. Biggins: Replacement by an employee not in the protected class, e.g. in an ADEA case, replacement by a younger employee.

Unequal treatment: employee asked to sign confidentiality agreement when others weren’t; replaced by younger man who was given less onerous agreement
Admissions: employer said getting membership at handball court wouldn’t help employee because he was too old; employee’s life insurance policy cost the company a lot because he was old

Types of evidence

Unequal treatment of employees

But, employers can offer alternative explanations as to the unequal treatment
Causation and intent – Unequal treatment must be “because of” protected status
Teamsters – can infer discriminatory intent from unequal treatment

Statements/admissions

Any type of statement – even if negative, benign, neutral, beneficial – can be used to show discriminatory intent

Still are discriminatory in the sense that treat one group differently than others
Hostility is sufficient, but not required to show discriminatory intent

Timing of remarks and “stray remarks”

What if remarks were made 3 months before the incident? Is there a close enough connection between discriminatory intent/state of mind and act

Some would stay link is attenuated and called “stray remark”
Stray remarks – the more removed from the adverse employment action, the less probative they are of intent and of causation

Evidence to show discriminatory intent is very fact specific

Stereotypes/evidence of stereotypes

Possible that supervisor did not intend to discriminate when assigned workers to the work – thought was assigning the best people for the job – but does that matter?

Example of pregnant women – reduce their hours once find out she’s pregnant or maybe even just start to lower performance reviews subconsciously

This may be because of stereotypes – maybe believe that women with kids are less capable or performing work even if it doesn’t mean that ER has animus against them – could be unconscious or protectionist

Illegal to rely on these kinds of proxies if they ar