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Employment Discrimination
University of Dayton School of Law
Perna, Richard P.

I.       Individual Claims of Intentional Discrimination [Disparate Treatment]: McDonnell-Douglass
a.       Race, color, religion, sex, and national origin with respect to all terms, conditions, and privileges of employment.
b.      Basic Analytical Framework:
                                                              i.      Step One: Plaintiff bears the burden of proving, by a preponderance of the evidence, that s/he
1.      Applied for
2.      An available employment opportunity
3.      For which s/he was qualified
4.      But did not receive
5.      Under circumstances which give rise to an inference of unlawful discrimination
                                                            ii.      This creates a rebuttable presumption that the reason for the plaintiff’s rejection was unlawful discrimination.
                                                          iii.      Step Two: Defendant must then carry the burden of producing evidence (but not the burden of persuasion) of some legitimate, nondiscriminatory explanation for its decision in order to rebut the presumption produced by the prima facie showing. Where defendant meets this minimal burden of production, the presumption is rebutted and the case proceeds to step 3.
                                                          iv.      Step Three: Defendant’s reason was not the real reason for the challenged decision but, instead, was merely pretext for the real reason—discrimination. Plaintiff can attempt to convince the fact-finder that discrimination was the motive either:
1.      Directly by offering evidence of that motivation, or
2.      Indirectly by establishing that the defendant’s asserted justification is not believable.
II.    Mixed Motive Cases Intentional Discrimination [Disparate Treatment]- Price Waterhouse
a.       Civil Rights Act of 1991- amended Title VII by codifying the Price Waterhouse ruling concerning the prima facie case (by proving that sex or any of the other four forbidden classifications was a motivating factor behind the challenged employer action.) But it also reversed the Court’s decision on the “same decision” defense by limiting its impact to the issue of remedies.
b.      703(m)- P can establish violation by proving that race, sex, etc., was a motivating factor for the challenged employment practice, even when another factor also motivated that decision.
c.       706(g)(2)- where P establishes discrimination pursuant to 703(m) and the defense proves that it would have taken the same decision in the absence of that unlawful motivating factor, the court may only grant declaratory and injunctive relief and attorneys’ fees, and cannot award positive relief such as damages or orders of reinstatement, promotion, etc.
III. Systemic Claims of Intentional Discrimination: Teamsters & Hazelwood
a.       Employer has engaged in a pattern or practice of conduct which repeatedly, regularly, and purposefully discriminates against members of protected category collectively.
b.      Can be established through direct and circumstantial evidence [statistical data] c.       Defenses:
                                                              i.      BFOQ
                                                            ii.      Affirmative Action
d.      Proving the Case:
                                                              i.      Plaintiff bears the burden of proving the existence of discrimination by a preponderance of the evidence.
                                                            ii.      Defendant can offer evidence to deny existence of prima facie case. But where the court determines that the plaintiff has established  a prima facie claim, the defendant then bears the burden of producing evidence of a nondiscriminatory reason behind the challenged policies.
                                                          iii.      Case then turns on whether the plaintiff can persuade the trier of fact that the employer implemented a discriminatory practice or policy.
e.       Teamsters- used general population statistics
f.       Hazelwood- used qualified member statistics
IV. Non-Intentional Discrimination: Disparate Impact [Griggs v. Duke] a.       Facially neutral criteria that:
                                                              i.      Produces a disparate exclusionary impact upon a protected group; and
                                                            ii.      Are not shown to be related to job performance or supported by business necessity
                                                          iii.      Irrespective or the employer’s lack of discriminatory intent
b.      Professionally Developed Tests and 703(h)
                                                              i.      A facially neutral employment criterion that produces disparate exclusionary impact and that is not shown to “bear a demonstrable relationship to successful performance of the jobs for which it was used,” falls outside the safe harbor of 703(h) because it is being “used” to discriminate.
c.       Disparate Impact Claims can also be used in ADA and ADEA cases

n:703(e)(1)- The BFOQ Defense
a.       Only in hiring on the basis of sex, religion, and national origin (but not race and color) where the employer can persuade the trier of fact that membership in one of the protected classes is a
                                                              i.      Bona fide occupational requirement that is
                                                            ii.      Reasonably necessary
                                                          iii.      To the normal operation
                                                          iv.      Of the defendant’s particular business
b.      The employer must establish:
                                                              i.      Than all or nearly all members of the excluded sex cannot perform a particular job function; and
                                                            ii.      That this job function is reasonably necessary to the essence of the defendant’s business operations.
c.       Safety (Dothard) ; restrooms and lockers; authentic restaurants; maternity wards of hospitals; strip clubs; wet nurses
d.      *** Can’t use business necessity as defense!!!***
VI. Affirmative Defense to Impact-Based Discrimination: 703(h)- Bona Fide Seniority System or Merit Systems and Professionally Developed Ability Tests AND Job Relatedness/Business Necessity (supra)
a.       Employer can act upon results of a professionally developed ability test unless the test is being used for the purpose of discriminating on the basis of any of the five statutorily protected classifications.
b.      Seniority System will not be deemed bona fide if the plaintiff can establish either:
                                                              i.      That the system does not discourage equally all employees from transferring between seniority units;
                                                            ii.      That the structure of that system is not rational or reflective of industry norms; or
                                                          iii.      That the employer initially developed the system of continued to maintain if for discriminatory motives.