Willborn – Employment Discrimination Chart – Fall 2016
Tater VII
Disability
ADA
Age
ADEA
CRA
-1981
-1983
Individual Disparate Treatment
-Single Motive
-Mixed Motive
The prima facie case:
1. Member of the protected class (Race, Sex, National Origin, Religion)
2. Qualified
3. Applied
4. Rejected
5. Position remained open
§703(a)(1):
1.When the EE has established PF case,
1. Burden shifts to ER to articulate some legitimate nondiscriminatory reason for rejection. If they fail to do so, P wins (probably won’t happen).
Remember that the ultimate burden of proof/persuasion stays with P at all times; Must show, by a preponderance of the evidence, that discrimination motivated the decision, however the burden of PRODUCTION shifts to the D to show a legitimate reason
2. Burden shifts back to EE to show pretext
3. All 3 steps presented:
Not enough for fact finder to say it’s not the real reason
Have to show that discriminatory animus was the real reason
Looking at the intent of the employer
§703(m):
When there are multiple reasons for the employment action and one of those reasons is illegal discrimination
Framework:
1. P must make out a PF case
2. P must prove that the ER gave “decisive consideration” to an improper quality in making an employment decision
3. D can escape liability for money damages by proving the absent the improper decision, they would have made the SAME determination (the burden of persuasion shifts to the D)
*See note 1 for distinction between single and mixed motive
**See note 2 for pretext
*** See note 3 for special defense
Same framework, however make sure you only use this if the P can perform the job without an accommodation; if an accommodation is required then see below
The ADA incorporates 706(g)(2)(b) by reference, but does not reference 703(m), so it is questionable about what applies, however some courts have applied the Gross Framework under the ADEA (see next box)
Maybe not
Gross Framework:
1. P makes out the prima facie case
2. P must also show that age was the “but-for” cause of the D’s action, in other words the burden DOES NOT shift to the D
Why?
Title VII was amended, but the ADEA was not
Willborn said don’t worry because we didn’t really talk about this that much
Systemic Disparate Treatment
Framework:
1. P must establish a prima facie case by using statistical evidence
A. actual treatment
B. expected treatment
C. compare
2. D can rebut by introducing alternative stats or by demonstrating that the P proof is inaccurate or insignificant
3. P then can show that the Ds information is biased, inaccurate or otherwise unworthy of credence
*See note 4 for explanation of statistical analysis
** See note 3 for special defense
DOES NOT APPLY
Its does apply and is the same framework
Disparate Impact
§703(k)
1. Identify a particular neutral factor that was used to make an employment decision
2. Show that this factor has a disparate impact on a protected group**
3. ER has burden to prove a b
ened him with or subjected him to discriminatory treatment, including discharge, because of his inability to fulfill the job requirements
-P is NOT required to show that he made efforts to compromise his religious beliefs or practices before seeking an accommodation from ER
4. THEN, D must establish that it initiated good faith efforts to accommodate the Ps religious practices
-ER can meet the burden by showing either that it gave a reasonable accommodation OR
-Showing that any reasonable accommodation would impose an undue hardship*
-Remember, if there are multiple reasonable accommodations available, ER gets to choose
Framework:
1. Does P have a disability? Must be any of the following:
a. Physical or mental impairment that substantially limits a major life activity
b. Record of such an impairment
c. The ER regards you as having a disability
2. Is the P a “qualified individual with a disability”? Is the P able to perform the essential functions of the job WITH a reasonable accommodation?
-If the P can perform the essential functions of the job WITHOUT ACCOMMODATION, you apply the single motive framework (see above)
3. Are the accommodations reasonable if they are necessary?
4. The ER may prove that there is undue hardship in providing the accommodation
