Select Page

Employment Discrimination
University of Toledo School of Law
Porter, Nicole Buonocore

Employment Discrimination Outline
                               I.      Theories of Discrimination
A.    Disparate Treatment: The employer treats some people less favorably than others because of their race, color, religion, sex, or national origin.
1.      Proof of discriminatory motive is crucial, although in some situations, it can be inferred from the mere fact of differences in treatment.
a.       The “because of” element of a violation requires proof of subjective bias.
b.      Intent is a question of fact and the factfinder’s determination in that regard can be set aside on appeal only if it is clearly erroneous.
1)      This standard is satisfied only when, “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.
2)      Factual error satisfying that standard is rare.
c.       Usually, only the intent of the ultimate decision maker is relevant to the enquiry, however, in some cases, the bias of someone without the power or authority to make the ultimate decision will be attributed to the one who did make this decision, even if this person was unaware of the contributing person’s taint.
1)      Rubber Stamp – applies when the ultimate decision maker simply accepts the bottom-line recommendation of a subordinate without further examination of the merits of the termination (or other adverse action ) decision.
2)      Cat’s Paw – A biased subordinate has influenced the decision through recommendations/suggestions, false information, or unfair evaluations to accomplish his illegal motive.
2.      Proof of Causation: The “because of” element also entails proof of causation.
3.      Single vs. Mixed Motive Decisions
a.       Single Motive Discrimination – presents the trier of facts with an either/or proposition:
1)      The employer’s treatment of one individual in a manner different from the treatment of another individual was either motivated by the adversely treated employee’s membership in a protected class or it was motivated by something else.
2)      The proof of one constitutes disproof of the other.
b.      Mixed Motive Discrimination – the most literal and clearest form occurs when a particular employment decision is the joint effort of more than one individual.
1)      There is a legal and an illegal motive for the employment decision.
4.      Proof of Motive
a.       McDonnell Douglas v. Green
1)      Prima Facie Case (a set of facts from which some inference of illegal motivation might be drawn – these facts create a rebuttable presumption of illegal motivation) – Plaintiff has the burden o

articulated reasons for the employment action, it is not compelled to enter judgment for the plaintiff. Plaintiff still retains the ultimate burden of persuasion of proving that the action was discriminatory.
a.       After Hicks:
1)      Pretext only: as long as plaintiff proves that defendant’s reason wasn’t the real reason, jury would be forced to find for the plaintiff.
2)      Pretext may: if plaintiff proves defendant’s reason is false, fact-finder may but is not required to infer discrimination, based on the assumption that if the defendant is giving a false reason, it is likely trying to cover up discrimination.
3)      Pretext plus: proving that the defendant’s reason is false is not enough. Plaintiff also has to prove that discrimination was the real reason.
b.      Other inferences
1)      Inference of no discrimination if decision maker is in same protected class as plaintiff.
2)      Same actor defense: if the same person hires the plaintiff as terminated the plaintiff, inference is that discrimination was not the reason for the decision.