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Employment Discrimination
Villanova University School of Law
Juliano, Ann C.

Villanova University School of Law
Employment Discrimination
Professor Juliano
Fall 2015
Summary of Plaintiffs:
Title VII: race, color, sex, religion, and national origin
ADEA:  Persons over 40 (discriminated against in favor of someone younger), typically need 8-10 year age gap
ADA: Qualified individuals discriminated against on the basis of disability
Summary of Defendants:
Title VII and ADA = 15 or more employees
ADEA = 20 or more employees
Tips for Choosing Between Claims:
1.      Does the employer’s action impact more than one person?
Yes – systemic disparate treatment or systemic disparate impact (continue to determine which one)
No – individual disparate treatment (stop)
2.      Is there is a neutral employment practice as issue?
Yes – disparate impact (stop)
No – disparate treatment (continue to determine which one)
3.      Is more than one person impacted?
Yes – systemic disparate treatment
No – individual disparate treatment
Summary of Major Defendant Employer Defenses:
·         BFOQ – practice must go to essence of job (systemic disparate treatment)
·         Business Necessity – practice must be related to job performance (impact)
·         RFOA – ADEA impact claims (impact)
·         LNDR – can be any nondiscriminatory reason (individual disparate treatment)
Framework is used where this is intent to discriminate. Whether or not an employer can be found liable depends on whether the protected trait actually motivated the employer’s decision.
SINGLE MOTIVE CASE (burden shifting and formerly used for circumstantial evidence cases. Also called McDonnell Douglas test)
Title VII, ADEA, and ADA:
1.      Prima Facie Case – Plaintiff Employee
–          Burden of proof
–          If proven, there is an inference of discrimination
–          If defendant remains silent after plaintiff proves its PFC, plaintiff wins
·          Plaintiff must prove discriminatory intent by inference (circumstantial evidence) – See McDonnell Douglas
o   Plaintiff is member of a protected class
o   Plaintiff applied for an open position OR was fired from a position
o   Plaintiff met the minimum qualifications for the position OR was performing at a level that met the employer’s reasonable expectations (adequately)
o   Plaintiff was rejected for the position OR suffered another adverse employment action (e.g. transferred – see PBA, question of fact whether plaintiffs were adversely affected because no loss in pay)
§  Minor – Adverse employment action must be material (e.g. forced to work 20-40 hours more a week was deemed material)
o   Position remained open OR employer hired/replaced employee with member outside of plaintiff’s protected class or someone younger (ADEA) or in instances giving rise to an inference of discrimination
2.      Legitimate Nondiscriminatory Reason (LNDR) – Defendant Employer
–          Burden shift to defendant:
o   Burden of production – just requires some evidence that LNDR is reason for adverse employment action
–          If provided, the inference of discrimination is overcome
·         Reason can nonsensical
o   Subjective
o   Illegal but nondiscriminatory
o   Illogical non-business
o   Illegitimate
o   False
·         McDonnell Douglas – employee had engaged in illegal activity
·         Reeves – employee had unsatisfactory work performance
·         Exceedingly light standard
·         Note: if employer offers a facially neutral LNDR, it may form the basis for the plaintiff’s impact claim.
3.      Pretext (LNDR is a cover-up for true discriminatory reason) – Plaintiff Employee
–          Burden of proof
o   The plaintiff must prove that the LNDR offered by the defendant is not the real reason behind the employment action. The plaintiff must prove that the real reason was discrimination and the discrimination was the determinative factor in the decision.
·         Must show evidence of discrimination:
o   Plaintiff shows LNDR is false might be eno

Same Decision Defense: If a plaintiff has made the showing in § 703(m), the defendant then has the opportunity to demonstrate by a preponderance of the evidence that it would have made the same decision in the absence of the impermissible reason. This is § 706(g). It limits the plaintiff’s remedies.
Civil Rights Act § 706(g)(2)(B) (Defendant employer = same decision defense)
On a claim in which an individual proves a violation under §703(m) and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court-
(i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a claim under §703(m) and
(ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (A).
1.      Prima Facie Case – Plaintiff Employee
–          Burden of proof
–          If proven, liability attaches
·         Protected class
·         Adverse employment action
·         Motivating factor
o   Direct evidence is not needed by a plain reading of the statute – see Desert Place
2.      706(g) Defense – Defendant Employer
–          Burden of Proof (preponderance of the evidence)
·         If employer meets burden, plaintiff’s damages/ remedies are limited:
o   Court may grant:
§  Declaratory relief
§  Injunctive relief
§  Attorney’s fees
§  Costs
o   Court will not grant:
§  Damages
§  Reinstatement
§  Hiring
§  Promotion