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

Employment Discrimination OUTLINE
Elements of Discrimination
Intent to discriminate
Adverse employment action
Causal link
Individual Disparate Treatment
McDonnell Douglas v. Green
1.      Plaintiff must make a prima facie case:
1.      Facial policy of unlawful discrimination;
2.      Direct Evidence (Slack v. Havens)
§ Ageist, sexist, racist, etc. comments
3.      Circumstantial Evidence (McDonnel Douglas v. Green)
a.       Plaintiff is member of protected class;
b.      That he applied for job and job was open;
c.       He met the minimum qualifications for the job;
d.      That, despite his qualifications, he was rejected; and
e.       That, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.
2.      Once prima facie case is shown, an inference of discrimination arises. In order to rebut the inference, employer must present evidence that the plaintiff was rejected, or the other applicant was chosen, for a legitimate nondiscriminatory purpose; (Patterson case)
      Can be nonsensical, etc.
      Don’t have to show it’s the real reason
3.      Burden then shifts again to show that stated reason for rejection was in fact pretext;
§ How do you show pretext?
§ Violation of their own policies
§ Shifting explanations
§ Timing
§ Reasons they gave were false (lies in their story)
4.      Mixed motives (Price Waterhouse)
§ If employer demonstrates, still liable but damages are affected
5.      If plaintiff wins, he/she gets past summary judgment and goes to trier of fact 
McDonnell Douglass
o    The McDonnell Douglas Court explains that “the defendant need not persuade the court that it was actually motivated by the proffered reason.
o    It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.”).
                  1.      Prima Facie Case –on Plaintiff
i.             Plaintiff is in a protected class
ii.           Plaintiff applied and was “qualified”
a.       Just has to show that plaintiff met base qualifications
b.      Would have to bring evidence such as job descriptions and postings, as well as qualifying information.
c.       Bottom line, this is pretty easy prong to meet.
iii.         Plaintiff was rejected
iv.         Position is still there – either remaining open or someone else filled the position
a.       Doesn’t matter if filled with someone of the same protected classification.
v.           Might help to prove defendant’s case by showing a lack of discriminatory intent.
                  2.      After prima facie case is made, a presumption of discrimination arises.
vi.         Employer is presumed to have discriminated in making the decision.
vii.       Saying nothing at this point results in a default judgment for plaintiff.
                  3.      Burden then shifts to employer to articulate some legitimate, nondiscriminatory reason for the employer’s rejection.
viii.     Articulate
a.       Defendant must present evidence as to what the legitimate, non-discriminatory reason for the challenged
ix.         Legitimate
x.           Non-discriminatory reason
a.       An “exceedingly light” standard
                  4.      Employer must rebut the plaintiff’s assertions by presenting evidence of a legitimate, non-discriminatory reason for the action.
xi.         Legitimate means non-discriminatory.
xii.       Even non-discriminatory reasons but which are arbitrary sounding could be harmful because of their effects on the jury.
xiii.     Must only provide evidence that raises a genuine issue of fact. 
                                                            2.      The explanation must be legally sufficient to justify a judgment for the defendant.
i.             Legally sufficient is anything other than the protected classes.
ii.           The factual inquiry then proceeds to a new level of specificity.
                  5.      Plaintiff then must prove that defendant’s articulated legitimate, non-discriminatory reason is merely pretext for a discriminatory reason.
iii.         This is not enough to win the case.
iv.         Must show evidence of discrimination to win, according to Hicks case.
a.       Evidence can be shown by
                                                                                              1).      Direct evidence of racial animus
                                                                                              2).      Pattern of employer discriminating against protected classes
                                                                                              3).      Statistical evidence as to
b.      The plaintiff cannot win just by showing a lying employer (pretext).
                                                                                                                                  1).       No pretext plus –Reeves
i).      Need to only show that a reasonable jury would conclude that there was discrimination
ii).    Reeves reminds courts that they were misapplying Hicks
Price Waterhouse
                  1.      Mixed motives case
1.      When to use PW:
a.       If can’t show pretext, or pretext evidence is weak.
                                                                                            i.      Ex: if employer has a strong legitimate reason, such as Л got in a fist fight (Costa)
b.      Note: Employers don’t want to ask for a mixed motive instruction b/c admits they had a bad motive.
                  2.      Prima Facie case + Direct Evidence
1.      Preponderance standard
                  3.      Defendant list legitimate reason for discrimination
                  4.      Plaintiff can then provide a motivating factor(Brennan concurrence)/ substantial factor(O’Connor opinion)
1.      only get lower standard (substantial factor) if you have direct evidence
2.      if not, your back to McDonell Douglass
                  5.      Then D can show that they would have made the same decision anyway
1.      if they do that, they avoid liability
                  ii.      1. Л must show by POE that protected trait was a motivating factor
1.      does not have to be the only factor
2.      stereotyping is not enough. But stereotyped remarks are evidence that gender played a role.
3.      PW: Л, only female out of 88 partner nominees, did not make partner

·          Serial application
·          Book options-101-111
o   Grab bag
o   Denial
Systematic Disparate Treatment
·          Can be proven in two ways
o    The plaintiff may simply show that the employer has an announced, formal policy of discrimination
§ Plaintiff need only bring the policy itself into evidence
·         No inference
o    The plaintiff who fails to prove a formal policy may nevertheless establish an employer’s pattern of employment decisions that reveal a practice of systematic disparate treatment
§ Have to show that what the employer is doing is not a random instance, but regular practice
·          Formal policies of discrimination
o    LA Water and Power v. Manhart
§ Department’s requirement that female employees make larger contributions to its pension fund than male employees violated Title VII.
§ The Department’s pension plan was based on mortality tables and its own experience showing that female employees had greater longevity than male employees
§ Opinion
·         Despite the fact that it is basing it on what it considers a fact of women as a whole, it has a negative impact on the individual woman, which does account for a systematic claim under Title VII.
o   The basic policy of the statute requires that we focus on fairness to individuals rather than fairness to sex
·         Also, you cannot justify discrimination with a cost analysis under Title VII
·          Patterns/Practices of discrimination
o    Teamsters v. US
§ Black drivers not getting as good of jobs as the white drivers
§ They tried to prove discrimination based off statistics and 40 live testimonies describing the discrimination
§ Defendants stated that statistics can never be used to prove the existence of discrimination
·         Court disagreed
o   Said statistics have always been relied on in cases
o   However, it had stated that it would not establish the prima facie case if there were statistics alone
§ “Statistics are not dispositive”
o   Need anecdotal/other evidence to establish the prima facie case
§ We don’t want to create a quota system
§ Title VII says you do not have to have a specific numbers (quotas)
·         But this is where the other evidence helps
·         “Stats are not being offered to show that the workforce should be racially balanced, but that, with an explanation, there is a pattern of discrimination”
o   Also, “the claimed discriminatory pattern is a product of pre-Act hiring, rather than unlawful post-Act discrimination,”
§ Discrimination can only be actionable if it happened after the statute was passed