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Civil Rights
University of Kentucky School of Law
Schwemm, Robert G.

Statutory Civil Rights (Schwemm; Spring 2015)

I. Employment Discrimination

A. 1964 Civil Rights Act

1. Ended segregation in public places & banned employment discrimination on the basis of race, color, religion, sex, or national origin.

B. Title VII: Coverage; Standards of Proof.


i. Employee Discrimination (§703)

1. Four elements for prima facie case of employee discrimination (McDonnell Douglas v. Green (1973)).

a. Belongs to a racial minority.

b. He applied and was qualified for a job for which the employer was seeking applicants.

c. Despite his qualifications, he was rejected; and

d. After his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.

*Could also show they hired someone else not from your protected class.

2. Burden then shifts to employer to articulate some legitimate reason for employee’s rejection.


1. Unlawful acts.

2. Not as qualified.

3. “I didn’t like him (P)”

a. To beat a title 7 claim, it’s better for an employer to say the non-hiring was subjective b/c it’s hard for plaintiff to come up with a comparable.

3. Plaintiff then gets a chance to rebut by showing the reason was merely “pretext.”

Ways to show pretext:

1. Comparables (i.e. White/not in P’s class).

2. Statistics à as to P’s class.

3. Other like cases.

**For a firing case, you would have to show you were doing satisfactory work and that you were replaced by someone in a different class.

ii. Retaliation (§704(a))

1. Green case shows you can bring two arguments à discrimination and retaliation (common).

2. Discrimination is based on what you are, retaliation is based on what you did.

3. After P proves prima facie case, burden (really light) shifts to the defendant. If D doesn’t rebut, judgment for P.

4. Elements:

-Must have an employer (>15 employees):

a. Discriminating against.

1. Where? à Anywhere.

2. To Whom? P= yes. Thompson case says firing fiancé is a yes. “The firing of a close family member will almost always meet the Burlington standard.” Firing a mere acquaintance will almost never meet this standard.

3. How severe?

i. “Materially adverse” = obj. standard.

ii. Firing & demotion = yes.

iii. Suspension w/ pay is a close one.

iv. Probably a no if employer doesn’t fire, demote, or take $ away. Petty slights and trivial actions are a no.

b. An employee/applicant

c. “Because of” (“but for” cause of the adverse action) à Can use PF or direct evidence.

d. P opposed unlawful employment practice OR has participated in a title VII proceeding.

i. Proving (c) is tougher than b/c of in §703. (Nasser)

ii. Giving a bad recommendation for a ne


a. 4 justices (majority) in Price Waterhouse say that the illegal reason must have “played a part.” àsmall burden.

b. 3 judges (dissent, led by O’Connor) said it should be “but for” causation.

5. The Civil Rights Act of 1991 (amendment) changed the standard to “a motivating factor” and P wins if P can prove that.

a. There is a limited affirmative defense that does not absolve D of liability, but restricts the remedies available to a P.

i. P doesn’t get damages or the job.

ii. P does win attorney fees and injunctive relief.

iii. Burden of proof is on D for this defense.

6. Desert Palace (2003) case says it doesn’t matter if you don’t have direct evidence (i.e. can use prima facie case). If you can’t tell the reason the P was denied in a mixed motive case, then P wins. But if the D can prove that they would have made the same decision regardless, then P only gets limited relief.

7. If jury can’t tell what reason was behind the D’s actions, then D hasn’t met burden of proof and P may get all relief.

v. After-Acquired Evidence (Mckennon v. Nashville (1995))

1. After acquired evidence only bears on the remedy allowed to P.