You are on page 1of 91

THE EMPLOYMENT DISCRIMINATION OUTLINE

NUMERO TRES
DISPARATE TREATMENT
Focuses on preventing intentional discrimination based on an individuals membership
in a protected class
Plaintiffs ultimate burden: P must convince fact finder that the employer took adverse
action because of protected characteristic
Employer practices
It shall be an unlawful employment practice for an employer--
!" to fail or refuse to hire or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms, conditions, or privileges
of employment, #eca$se o% such individual's race, color, religion, se, or national origin!
& '()a"!"
T*ree Types o% DT Claims T*ree +ays o% Pro,in- Discriminatory
Intent
I. "ingle #otive
II. #ied #otive
III. Pattern or Practice
IV. $irect %vidence
V. &ircumstantial %vidence
VI. #c$onnell $ouglas "cheme
a. &reates circumstantial
evidence, e.g., an inference of
discrimination
Direct E,idence
I. 'here a plaintiff is able to discover and produce persuasive direct evidence of
the defendants discriminatory intent, there is no need to resort to circumstantial
evidence, and therefore no need to use the McDonnell Douglas framework(
a. )n eample of direct evidence is a case in which the plaintiff offers into
evidence a memorandum written by the company president stating that he
did not hire the plaintiff because she is a woman(
II. 'here the plaintiffs direct evidence establishes a prima facie case of disparate
treatment the employer normally responds either by disputing the plaintiffs
showing *e(g(, by adducing evidence that a biased statement was not made, or
meant something other than what the plaintiff claims+ or by ,ustifying the
employers practice by demonstrating the applicability of any statutory
immunities or affirmative defenses(
Circ$mstantial E,idence
I. &ircumstantial evidence does not directly prove a fact of conse-uence to the
determination of an action! rather, it permits the fact finder to infer the eistence
of such a fact(
McDonnell Do$-las .rame/or0 at a 1lance
.( Plaintiff has burden of proving prima facie case
*a+ membership in a protected class
*b+ adverse employment action
1
*c+ -ualified for at-issue ,ob
*d+ causal connection between adverse employment action / protected
classification
0( 1urden of production shifts to employer to respond with a legitimate, non-
discriminatory reason for its actions
2( 1urden of production shifts back to plaintiff to establish that the employers
articulated legitimate, nondiscriminatory reason was a pretext to mask unlawful
discrimination(
McDonnell Do$-las .rame/or0
I. Prima .acie Case
a. 3he burden of establishing a prima facie case of disparate treatment is not
onerous(
i. 3he #c$onnell $ouglas framework of analysis, was never intended to
be rigid, mechani4ed or ritualistic, but is rather merely a sensible
orderly way to evaluate the evidence in light of common eperience
as it bears on the critical -uestion of discrimination( .$rnco(
ii. 3he facts necessarily will vary in 3itle 5II cases, and the specification
of the prima facie proof re-uired from the plaintiff is not necessarily
applicable in every respect to differing situations(
b. 1ecause PF& creates an inference of intent, P need not produce evidence of
discriminatory intent to establish PF&(
Re-ardless o% t*e %orm o% t*e
prima %acie case2 a plainti%% in a
disparate treatment case m$st
pro,e %o$r elements3

4$rden
3he plaintiff bears the burden of production and
persuasion(
*.+ #embership in a protected
class:
*0+ 6ualification for the ,ob!
*2+ )n adverse employment action!
and
*7+ ) causal connection between
the adverse action and protected
classification(
3he central in-uiry in evaluating whether the plaintiff
has met their burden is /*et*er t*e circ$mstantial
e,idence presented is s$%%icient to create an
in%erence i5e52 a re#$tta#le pres$mption" t*at an
ille-al criterion /as a #asis %or an employment
related decision5 If the tier of fact believes the
plaintiffs evidence, and the employer is silent in the
face of the presumption, the &ourt must enter
,udgment for the plaintiff( )t a minimum, a plaintiff
must allege facts which, if true, would violate the law
Ad,erse
Employment
Action
Elements o% Prima .acie Case
.ail$re to
Hire6 .ail$re
to Promote
.( #embership in a protected
class
0( )pplication and
-ualification for the ,ob in
which the employer was
seeking applicants
2( 8e,ection, despite
applicants -ualifications,
E7ceptions to Application Re8$irement
.( %mployer has no formal application
procedure
0( %mployee unaware of opportunity
2( %mployers promotions policy is informal
/ sub,ective / vague9secretive
7( %mployer failed to establish a clear
personnel procedure for promotions
2
and
7( 3he employers continued
solicitation of applicants with
-ualifications e-ual to the
plaintiff
:( Futile ;esture $octrine<employer has
reputation for refusing to employ members
of protected group
Demotions .( #embership in protected class
0( $emoted
2( )t time of demotion, performing at level that met the employers legit
epectations
7( )fter demotion, employer replaced P with someone of comparable
-ualifications
Discriminato
ry disc*ar-e
.( #ember of protected class!
0( $ischarged
2( )t the time the employer took the adverse employment action she was
performing at a level that met the employers legitimate epectations! and
7( 3he position was filled by a similarly -ualified applicant outside of the
individuals protected class
1
Discriminatio
n in terms 9
conditions o%
employment
.( #ember of protected class
0( $iscriminated in 39&9P of employment
2( %mployer treated similarly situated employees outside of classification
more favorably
7( 6ualified for ,ob
Re,erse
Discriminatio
n
2
3o establish a prima facie case of reverse discrimination, some courts
have modified the standard by imposing an additional burden on plaintiffs
to prove background circumstances sufficient to raise the inference that
the employer is the unusual employer who discriminators against the
ma,ority( ) plaintiff may satisfy the heightened burden by showing:
a( "ome reason or inclination to discriminate invidiously against whites or
men, and evidence that there is something fishy about the facts of the
case at hand! or
b( 3he person ultimately hired was clearly less -ualified than the plaintiff,
the hiring authority epressed intense interest in hiring a minority or there
was a pattern of hiring minorities in the past! or
c( 3hat he was the only white employee in the department and all of the
decision makers were minorities(
6:Color
Discriminatio
n
.( #ember of protected class
0( )dverse employment action
2( 6ualified
7( %mployer treated more favorably9hired individual of different skin color
Red$ction in
.orce
In 8IF cases, the employer may make a business decision to reorgani4e
by eliminating one or more positions(
.( )n inference of discrimination re-uires proof that the employers
decision to retain
certain employees to perform plaintiffs ,ob duties was
1 In )$%) cases, the plaintiff need not prove that the position was filled with an individual
outside of the protected class(
2 3itle 5II provides protection from discrimination regardless of ones race( =ence, reverse
discrimination claims, involving plaintiffs who has been favored historically, are actionable
under 3itle 5II(
3
discriminatory(
a. 3he court may infer discrimination where the employer
retained a similarly situated employee not within the
plaintiffs protected class to fill the ps position or otherwise
treated such an individual more favorably then the p
1ender
Stereotypin-
Involves claims resting on the premise that the employer took adverse
action against the employee because of the employers belief that an
employee of one gender either cannot or must not possess or display
-ualifies stereotypically associated with perceptions and epectations of
how the other ender should or should not look or behave(
.( &ourts typically re-uire that plaintiffs make a minimal showing to state a
claim for se discrimination based on gender stereotyping(
a( ) short and plain statement containing any allegation of
discrimination for failing to
meet the gender stereotype, including evidence of name calling,
rumors, or offensive
physical contacts, will likely suffice to state a 3itle 5II claim
0( 3he plaintiff must also show that the employer relied on the plaintiffs
gender in making the decision(
Similarly Sit$ated Comparator
Proving that a similarly situated individual was treated differently is the most common
means of establishing the ultimate -uestion of discrimination in discriminatory discharge,
failure to promote, and discrimination in terms9conditions9privileges of employment cases(
"everal courts have held that establishing a similarly situated comparator is one means of
proving discrimination but is not a re-uired element of proof
Similarly
Sit$ated
Standard
s
Se,ent* Circ$it
In order for an individual to be similarly situated to P, the P must show that the
individual is directly compara#le to her in all material aspects(
e.g., same supervisor, same ,ob duties, eperience, performance, and
whatever other relevant factors were at issue
.i%t* Circ$it
"imilarly situated>nearly identical
District Co$rt
"imilarly situated>reasonably close resemblance of the facts and
circumstances of the ps and comparators cases, rather than showing they
are identical, with reasonableness defined as the touchstone of the courts
in-uiry
II. Le-itimate2 nondiscriminatory reason
?nce the plaintiff proves a prima facie case, the burden of production shifts to the
employer to articulate a @A$8( )s long as the employer introduces enough
admissible evidence to create an issue of fact, the @A$8 drops presumption of
liability created by PF&(
a. Re8$irements
3

i. Admissible Evidence
1. In order to rebut the plaintiffs prima facie case successfully, the
3 3he employers burden at this stage is only one of going forward and adducing evidence!
the ultimate burden of persuasion always rests with the plaintiff
4
defendant must clearly set forth, through the introduction of
admissible evidence, the reasons for the plaintiffs re,ection(
ii. Specificity
1. )lthough the employers burden is light, the employer must
articulate its nondiscriminatory reason for the challenged action
with some specificity in order to afford the plaintiff a full and fair
opportunity to demonstrate pretet(
2. %mployer need not prove the person hired9promoted had
ob,ectively better -ualifications .$rnco
iii. Legitimacy
1. 3he employer need not prove that it was actually motivated by
the proffered reasons! rather, the employer need only produce
such evidence of nondiscriminatory motive as is necessary to
create a factual issue
2. )s long as the reason is not unlawful under 3itle 5II, it is
considered legitimate and non discriminatory
3. &ourts tend to refrain from passing ,udgment on the legitimacy
of the employers state reason( =owever, there are some
instances when an employers proffered reason for discharge
may be deemed insufficient(
a. e.g., does not contradict PF&, internally inconsistent, too
vague, facially not credible
Employers *a,e attempted to carry t*eir #$rden o% prod$ction #y o%%erin-
e7planations %or ta0in- t*e c*allen-ed ad,erse action
.( #isconduct<in cases involving alleged employee misconduct, courts have held that
in order to satisfy its burden of production, the employer need only state that it honestly
believed that a work rule was violated, and need not establish that the infraction actually
occurred(
0( Inability to get along with supervisors or coworkers
2( 3he need to eliminate ,obs
7( ?ther economic factors
:( Poor 'ork Performance
B( Inferior work performance in comparison with another candidate
C( Insubordination, inferior test scores
D( Personality factors
E( 1eing over-ualified for the ,ob
.F( )ttendance
..( Inade-uate or lesser -ualifications
.0( &ompliance with union contracts
.2( ;reater familiarity with another employee
.7( In cases involving illegal gender, age or racial stereotyping, an employer may defeat
plaintiffs claims by adducing evidence that its employment decision was individuali4ed
and based on the plaintiffs actual attributes, rather than stereotypical generali4ations
A%ter;Ac8$ired E,idence
'here employer ac-uires evidence of employee misconduct that would be sufficient to
create @A$8 after unlawful employment action is taken against employee, the evidence
does not absolve the employer of liability( 8ather, the employees remedies are limited<
no reinstatement or front pay, but back pay can be awarded from the time of adverse
5
action until employer becomes aware of the after ac-uired evidence(
Same Actor De%ense
'here the same supervisor both hired and fired an employee and the period between
the hiring and firing is relatively short, the employer is entitled to an inference that the
discharge was not motivated by discriminatory animus( &ourts differ as to whether same
actor evidence creates a mandatory presumption, a strong inference for the court to
consider on "G, or whether a possible conclusion for the ,ury to draw on(
III. Prete7t3 Plainti%% m$st pro,e t*at discrimination ca$sed t*e ad,erse
employment action #y a preponderance o% t*e e,idence5
a. If the defendant presented evidence of a @A$8, the plaintiff may still prevail
by proving that the proffered ,ustification was a pretet for discrimination(
i. )t this stage, the plaintiffs burden of showing pretet merges with the
ultimate burden of persuading the court that the plaintiff has been the
victim of intentional discrimination( 4$rdine
ii. It is not enough to disbelieve the employer, the court must believe that
discrimination was the real reason( St5 Mary:s
1. Pro,in- Prete7t
a. Eit*er directly #y o%%erin- e,idence t*at
discriminatory anim$s more li0ely moti,ated
ad,erse employment action
i. E.g., statistics, evidence of discriminatory
conduct, comparator evidence
1. ?ffer evidence he is more 8$ali%ied than
the candidate that received the
employment opportunity that was denied to
the P( &ourts may re-uire very substantial
comparative difference in -ualification(
Standard3 $isparity must be of such significance that no reasonable / impartial
decision-maker wouldve chosen the selected candidate over the P
2. "how similarly sit$ated workers were
also sub,ected to the discriminatory
conduct alleged by the P
Me Too E,idence
e(g(, evidence of discriminatory conduct towards other employees
sub,ect to general test of relevancy *if it has any tendency to make a fact of
conse-uence more or less likely+
b. Or indirectly #y o%%erin- e,idence t*at Prete7t <
.alse
i. E.g., has no basis in fact, did not actually
motivate action, or was insufficient to warrant
challenged conduct *employers past practices,
similarly situated comparator evidence,
employees -ualifications in relation to more
favorably treated individuals, changing
eplanations, temporal proimity between action
/ protected activity+
1. 1ecause there may be unstated, yet
6
undiscriminatory, reasons for adverse
employment action, the fact finders
re,ection of the employers @A$8 does not
compel ,udgment for the plaintiff( St5
Mary:s
a. 3he plaintiffs PF&, combined with
sufficient evidence to find that the
employers asserted ,ustification is
false, may permit the trier of fact to
conclude that the employer
unlawfully discriminated St5 Mary:s
Honest 4elie% R$le
&ourts generally review an employers proffered eplanation in a sub,ective light,
meaning that they look not to whether the eplanation is true, but whether the employer
honestly believed it was true( ;ood faith mistaken beliefs are not pretet for
discrimination
=$d-ment as a Matter o% La/
) showing by the plaintiff is not always ade-uate to sustain a finding of liability( See
Ree,es( For instance, an employer would be entitled to ,udgment as a matter of law if
the record conclusively revealed some other, @A$8 for the employers decision, or if the
plaintiff created only a weak issue of fact as to whether the employers reason was
untrue and there was abundant and uncontroverted independent evidence that no
discrimination had occurred( 'hether ,udgment as a matter of law is appropriate in any
particular case will depend on a number of factors( 3hose include:
.( 3he strength of the plaintiffs prima facie case!
0( 3he probative value of the proof that the employers eplanation is false! and
2( )ny other evidence that supports the employers case and that properly may be
considered on a motion for ,udgment as a matter of law(
Ree,es
H3 P might not always defeat G#@ by offering evidence that creates an issue of fact to
the credibility of $s asserted eplanation( %mployer could be entitled to G#@, even
when P offers evidence challenging the credibility of its reason when: *.+ Hl$r0in- in t*e
recordI where record conclusively reveals a nondiscriminatory eplanation not asserted
by defense or *0+ where Ps evidence produced only a HweakI issue of fact on
believability of $s eplanation AND record contains abundant9uncontroverted evidence
that no discrimination occurred
MI>ED MOTI?E DISPARATE TREATMENT CLAIMS
)n unlawful employment practice is established when the complaining party
demonstrates that race, color, religion, se, or national origin was a moti,atin- %actor
for any employment practice, even though other factors also motivated the practice(
&'()m"
If the employee succeeds in proving discrimination was a motivating factor / the
7
employer demonstrates it wouldve made the same decision without the impermissible
factor, the court is NOT permitted to award damages or order certain forms of in,unctive
relief such as reinstatement, hiring, promotion, backpay 4UT the court may order
declaratory / in,unctive relief, attorneys fees, / costs( & '(@-"A"4"
Mi7ed Moti,e .rame/or0
II. 3he burden is on the plaintiff to establish a prima facie case by proving by a
preponderance of the evidence that an impermissible factor was a motivating
factor behind the adverse employment action
TEST 3he critical in-uiry is whether the impermissible
factor was a factor in the employment decision at the
moment it was made(
a. Plaintiff may establish prima facie case with direct or circ$mstantial
evidence<3he P need only present sufficient evidence for a reasonable ,ury
to conclude by a preponderance of the evidence that race9se9etc( was a
motivating factor for the adverse action
i. 'hen a plaintiff offers direct evidence of discrimination, the case
avoids the McDonnell Douglas burden-shifting proof structures and
moves directly into the remedial phase to determine whether the
employer would have made the same decision absent the
discriminatory motive(
III. 3he burden of production and persuasion then shifts to the employer to prove by
a preponderance of the evidence that it would have made the same decision in
the absence of the impermissible motivating factor(
a. 3he affirmative defense does not absolve the employer of liability( 8ather, an
employer that proves it would have made the same decision may avoid only:
i. @iability for monetary damages, including back pay, front pay,
emotional distress, and punitive damages(
ii. 1eing sub,ect to an order re-uiring instatement, reinstatement, or
promotion(
1. 3he court may still grant in,unctive relief and attorney fees
Price +ater*o$se ,5 Hop0ins
Plaintiff denied partnership brought se discrimination claim under 3itle 5II against
employer( Plaintiff was very successful at her ,ob but was also rather abrasive<i(e(
overly aggressive, unduly harsh, difficult to work with and impatient with the staff(
=owever, there were clear signs that some of the partners reacted negatively to plaintiffs
personality because she was a woman<i(e( asked to walk more femininely, talk more
femininely, dress more femininely, / wear make up(
H3 ) plaintiff can establish a presumption of liability under 3itle 5II by showing that
discrimination was a motivating factor in the challenged adverse employment action( 3he
employer may then avoid liability by proving by a preponderance of the evidence that it
would have made the same decision absent the discrimination(
Desert Palace ,5 Costa
Plaintiff was the only female working in the warehouse as a heavy e-uipment worker(
"he received high performance marks but had trouble with her coworkers and
management( "he was later terminated after an altercation with her coworkers! however,
8
the other employee in the altercation was merely suspended(
I3 'hether a plaintiff must present direct evidence of discrimination in order to obtain a
mied motive instruction under J CF2*m+K
H3 Ao( In order to obtain an instruction under J CF2 *m+, a plaintiff need only present
sufficient evidence for a reasonable ,ury to conclude by a preponderance of the
evidence, that race, color, religion, se, or national origin was a motivating factor for any
employment practice(
CAT:S PA+ THEORY
3he cat's paw theory is a way of proving discrimination when the decision maker herself is
admittedly unbiased( Lnder the theory, the discriminatory animus of a non-decision maker
is imputed to the decision maker where the former has singular influence over the latter
and uses that influence to cause the adverse employment action(
To pre,ail on a catBs pa/ claim $nder USERRA2 and pres$ma#ly $nder Title ?II as
/ell2 a plainti%% m$st demonstrate t*at3
I. ) supervisor HperformMedN an actI motivated by discriminatory animus in the scope
of their employment!
a. E.g., issued biased report
i. Sta$# was framed as a mied motive claim but likely could be
asserted as a single motive claim as well(
II. 3hat act was Hintended by the supervisor to cause an adverse employment actionI!
and
a. E.g., supervisor said they wanted the employee fired because of protected
characteristic
III. 3hat act proximately caused the subse-uent adverse employment action(
a. Proimate cause re-uires only direct relation between the in,ury asserted
and the in,urious conduct alleged, and ecludes only those links that are too
remote, purely contingent, or indirect( E.g., fired because employee ignored
directive warning issued with discriminatory animus
i. Independent Investigation
1. &onducting an independent investigation does not absolve
employer of liability(
a. If the employer's investigation results in an adverse
action for reasons unrelated to the supervisor's original
biased action *by the terms of L"%88) it is the
employer's burden to establish that+, then the employer
will not be liable( 1ut the supervisor's biased report may
remain a causal factor if the independent investigation
takes it into account without determining that the
adverse action was, apart from the supervisor's
recommendation, entirely ,ustified( Sta$#
Sta$# ,5 Proctor Hospital
Plaintiff worked as an angiography technician for Proctor =ospital( Plaintiff was a
member of the )rmy 8eserve( Plaintiffs supervisor *#ulally+ and supervisors supervisor
*Oorenchuck+ were hostile to plaintiffs military obligations: told co-worker that plaintiffs
military duty was a strain on the dept( and asked the coworker to help her get rid of him(
#ulally issued the plaintiff a disciplinary warning for purportedly violating a company rule
9
re-uiring him to stay in his work area whenever he was not working with a patient(
)nother employee complained to the 5P of human resources *1uck+ and &%?
*#c;owan+ about plaintiffs unavailability and abruptness( #c;owan directed
Oorenchuck and 1uck to create a plan that would solve plaintiffs availability problems(
1efore they had time to do so, Oorenchuck informed 1uck that plaintiff had violated his
corrective action( 1ased on Oorenchucks accusation and a review of plaintiffs
personnel file, 1uck discharged plaintiff( Plaintiff sued under the Lniformed "ervices
%mployment and 8eemployment 8ights )ct claiming his discharge was motivated by
hostility to his obligations as a military reservist( Plaintiff argued that, although 1uck had
no hostility, #ulally and Oorenchuck did, and that their actions influenced the ultimate
employment decision( Gury found for plaintiff( &?) reversed holding that a cats paw
case could not succeed unless the non-decision-maker eercised such singular
influence over the decision maker and that the decision to terminate was the product of
blind reliance(
I3 'hether an employer may be held liable for employment discrimination based on the
discriminatory animus of an employee who influenced, but did not make, the ultimate
employment decisionK
H3 Pes( If a supervisor performs an act motivated by antimilitary animus that is intended
be the supervisor to cause an adverse employment action, and if that act is a proimate
cause of the ultimate employment action, then the employer is liable under the
L"%88)( #ulally and Oorenchuck were acting within the scope of their employment
when they took the actions that allegedly caused 1uck to fire the plaintiff( 3here was
evidence that #ulallys and Oorenchucks actions were motivated by hostility towards
plaintiffs military obligations( 3here was evidence that their actions were causal factors
underlying 1ucks decision to fire the plaintiff<termination notice stated that plaintiff was
discharged b9c he ignored directive of corrective action( 3here was evidence that both
#ulally and Oorenchuck had the specific intent to cause the plaintiff to be fired(
R3 'hen &ongress creates a federal tort, it adopts the background of general tort law(
Intentional torts such as this, as distinguished from negligent or reckless torts, generally
re-uire that the actor intend the conse-uences of an act, not simply the act itself(
PATTERN OR PRACTICE CLAIMS
%mployer has engaged in a pattern or practice of conduct that regularly, repeatedly, /
purposefully discriminates against members of a protected category in the aggregate
'henever the ); has reasonable cause to believe that any person or group of persons
is engaged in a pattern or practice of resistance to the full en,oyment of any of the rights
secured by this subchapter, and that the pattern or practice is of such a nature and is
intended to deny the full eercise of the rights herein described, the ); may bring a
civil action in the appropriate district court of the Lnited "tates by filing with it a
complaint *.+ signed by him *or in his absence the )cting )ttorney ;eneral+, *0+ setting
forth facts pertaining to such pattern or practice, and *2+ re-uesting such relief, including
an application for a permanent or temporary in,unction, restraining order or other order
against the person or persons responsible for such pattern or practice, as he deems
necessary to insure the full en,oyment of the rights herein described( & '('
Pattern 9 Practice .rame/or0
Pattern and practice cases consist of two phases: *.+ the liability phase and *0+ the
10
remedial phase(
A5 Sta-e !3 Lia#ility P*ase
If the plaintiffs establish a presumption that a pattern or practice of discrimination eists
and the employer is unable to rebut that presumption, the employer is liable for systemic
disparate treatment( ?nce the liability stage is completed, the case moves to the remedial
phase(
I. Plainti%%s presents prima facie case
3he plaintiff bears the initial burden of showing, by a preponderance of the
evidence, that a pattern or practice of di%%erential treatment is the defendants
standard operating procedure(
4
Proof of isolated discriminatory acts is
insufficient to establish a pattern or practice of discrimination( Instead, there
must be proof that discrimination was a repeated and ro$tine practice(

a. Met*ods o% Proo%
i. Statistical Evidence<Plaintiffs generally establish a prima facie case
upon presentation of statistical evidence that creates an inference of
class wide discrimination<by demonstrating that their protected
group is underrepresented in the employer's work force by
comparison to the relevant labor market, and that this
underrepresentation is sufficiently significant to rule out the possibility
that it was the product of chance (
Statistical Si-ni%icance R$le
"tatistical evidence is not probative unless it supports the inference that a policy or
practice has a significant effect on limiting the employment opportunities of a protected
class( "tatistical significance refers to disparities so large that they are unlikely to be the
result of chance(
1. Comparative Statistical Models
a. "tandard $eviation
i. "tatisticians begin this analysis by establishing
the variance that is epected in a given pool of
applicants
ii. 3he central -uestion then becomes how close is
the racial makeup of the employers workforce to
this epected variation(
iii. )lthough there is no set rule for statistical
significance, something less than a .Q-:Q
chance that the employers numbers could eist
absent discrimination is usually deemed
statistically significant *this is referred to as a
statistically significant p value or a showing of a
disparity that is two to three standard deviations
from the epected outcome(+(
b. #ultiple 8egression )nalysis
i. $esigned to estimate the effects of several
independent variables on a single dependent
4 In class cases the plaintiff is not required to produce direct or coparati!e e!idence of
discriination pertainin" to each eber of the class for #ho relief is sou"ht. Instead$ the
plaintiff "enerall% relies priaril% upon statistical e!idence to create an inference of class #ide
discriination.
11
variable(
2. Relevant abor Mar!et R8egardless of the model chosen, the
most critical step in proper statistical analysis is Hdefining the
pool from which an employment choice was made and
determining the racial, gender, or other pertinent characteristics
of the group since this group's characteristics are used ( ( ( as
the basis for determining the nondiscriminatory comparison
group(
a. 8elevant labor market > -ualified individuals
i. 3he proper basis for the initial in-uiry in a $I case
is between the racial composition of the -ualified
persons in the labor market and the person
holding at-issue ,obs(
1. 3he relevant labor market should include
only the areas from which employees are
actually drawn(
b. Plaintiffs can cite general population statistics only
where the accurately reflect the pool or -ualified ,ob
applicants(
ii. Evidence of Intentional Discrimination
1. 3he statistical evidence is usually combined with supplemental
evidence Hdescribing the contet in which disparities in
treatment arose(I
a. "uch evidence may include:
i. anecdotal testimony of individual employees!
1. i(e( eamples of credible individual
disparate treatment claims<such as
employees of a certain race being passed
over for promotions
ii. evidence of past patterns of discrimination!
iii. evidence of specific eclusionary practices!
i!. the presence or absence of effective affirmative
action plans and9or recruiting efforts!
!. fre-uency of previous complaints of
discrimination! and
!i. use of highly sub,ective employment policies or
practices(
II. Employer Re#$ts
?nce the Plaintiff has presented evidence of a statistically significant disparity,
an employer may re#$t the inference of discrimination either by:
a. 8ebutting the inference of discrimination created by plaintiffs' statistics by
showing them to be inaccurate or insignificant<e.g., challenging the
data9model9chosen comparator group
b. 1y creating their own statistical analysis! or
c. 1y providing an eplanation for the disparity that is not taken into count by
the plaintiffs statistics
i. Lac0 o% interest de%ense n( : p( 0.F
1. 3he lack of interest defense to a prima facie case of intentional
discrimination is based on the argument that a statistically
significant disparity in race or se is not the result of
12
discrimination, but the lack of interest by minorities or women in
,obs in which they are underrepresented(
a. See EEOC ,5 Sears
i. ;ender discrimination suit<women
underrepresented in commissioned sales( &ourt
accepts employers argument that women are less
interested in the competitive field of
commissioned sales(
III. Plainti%% O%%ers E,idence o% Prete7t
If the employer successfully rebuts, the class is then permitted *pursuant
to McDonnell Doualas"#urdine+ to show that the employer's reason*s+ for acting
is untrue, and thus pretet for intentional discrimination(
45 Sta-e A3 Remedial P*ase
In the remedial phase, the court must determine two sets of issues:
&1' 'hether to order certain general in,unctive or e-uitable remedies! and
a. E.g., en,oining a discriminatory hiring system or implementing an affirmative
action plan
&2' 'hat are the appropriate remedies for each individual plaintiff
a. 3he starting point of analysis is whether the individual was actually a victim
of the discrimination( 3he presumption is that every member of the class was
a victim, thus< the #$rden is on t*e employer by clear and convincing
evidence to overcome the discriminatory inference as to specific victims to
avoid liability(
Class Actions
)s an initial matter, in order for a plaintiff to bring a class action under 8ule 02, the plaintiff
must have timely filed a charge of discrimination with the %%?& and must have completely
ehausted the relevant administrative processes( =owever, the other members of the
class do not need to have filed charges *piggy back rule+(
R$le A) Class Actions
a" Prere8$isites5 ?ne or more members of a class may sue or be sued as
representative parties on behalf of all members only if:
!" the class is so numerous that ,oinder of all members is impracticable!
A" there are -uestions of law or fact common to the class!
)" the claims or defenses of the representative parties are typical of the claims or
defenses of the class! and
C" the representative parties will fairly and ade-uately protect the interests of the
class(
#" Types o% Class Actions5 ) class action may be maintained if 8ule 02*a+ is satisfied
and if:
!" prosecuting separate actions by or against individual class members would
create a risk of:
A" inconsistent or varying ad,udications with respect to individual class
members that would establish incompatible standards of conduct for
the party opposing the class! or
4" ad,udications with respect to individual class members that, as a
practical matter, would be dispositive of the interests of the other
members not parties to the individual ad,udications or would
13
substantially impair or impede their ability to protect their interests!
A" the party opposing the class has acted or refused to act on grounds that apply
generally to the class, so that final in,unctive relief or corresponding declaratory relief
is appropriate respecting the class as a whole! or
)" the court finds that the -uestions of law or fact common to class members
predominate over any -uestions affecting only individual members, and that a
class action is superior to other available methods for fairly and efficiently
ad,udicating the controversy( 3he matters pertinent to these findings include:
A" the class members' interests in individually controlling the prosecution
or defense of separate actions!
4" the etent and nature of any litigation concerning the controversy
already begun by or against class members!
C" the desirability or undesirability of concentrating the litigation of the
claims in the particular forum! and
D" the likely difficulties in managing a class action(
R$le A) is di,ided into t/o #asic parts2 re8$irements $nder R$le A)a" and
re8$irements $nder R$le A)#"5 A party see0in- class certi%ication m$st a%%irmati,ely
demonstrate *is compliance /it* R$le A) re8$irements5
I. R$le A)a" Re8$irements
a. N$merosity
i. #embers of the proposed class must be so numerous that ,oinder of
these individuals as named plaintiffs would be impractical
b. Typicality
i. 3he named plaintiffs claims or defenses are typical of the class
c. Commonality
i. 8e-uires the plaintiff to demonstrate that the class members have
suffered the same in,ury
1. 'hat matters to class certification is not the raising of common
-uestions even in droves<but, rather the capacity of a class
wide proceeding to general common answers apt to drive the
resolution of the litigation( $issimilarities within the proposed
class are what have the potential to impeded the generation of
common answers( +al;Mart
a. &ommonality re-uirement for class certification obligates
the named plaintiff to demonstrate that class members
have suffered the Hsame in,ury,I not merely that they
have all suffered violation of same provision of law!
claims must depend upon a common contention, and
that common contention must be of such a nature that it
is capable of class wide resolution, meaning that
determination of its truth or falsity will resolve issue that
is central to validity of each one of the claims in one
stroke( +al;Mart
d. Ade8$acy o% Representation
i. 3he named plaintiff can fairly and ade-uately represent the class, had
no conflicts of interest with other members of the class, and will be
-ualified counsel
II. R$le A)#" Re8$irements
14
3he class must be certified as one of the designated types of class actions allowed
under 8ule 02*b+
a. R$le A)#"!" limited fund cases *generally not applicable to employment
cases+
b. R$le A)#"A" e-uity class actions
i. $ealing with a type of case where in,unctive relief e-ually applies to
all members of the class
c. R$le A)#")" monetary class actions
$ealing with actions seeking compensatory and punitive damages(
i. Re8$irements
1. Notice
a. R$le A)#")" class members are entitled to notice and
may opt out if they so choose
2. Hei-*tened commonality
a. R$le A)#")" re-uires that -uestions of law and fact
common to members of the class predominate over
-uestions affecting only individual members(
3. S$perior to ot*er proceedin-s
a. R$le A)#")" provides that the R$le A)#")" device
must be superior to other ways of proceedings based
on: etent / nature of proceedings that have already
begun, likely difficulties in maintaining class actions, ect(
International 4rot*er*ood o% Teamsters ,5 United States epected v( observed
composition
Lnion brought claim on behalf of minorities asserting that the company had engaged in
a pattern or practice of discriminating against black and "panish surname truck drivers
in hiring higher-paying, long-distance hauling ,obs(
I3 'hether statistics can ever in and of themselves prove the eistence of a pattern or
practice of discrimination or establish a prima facie case shifting to the employer the
burden of rebutting the inference raised by the figuresK
H3 Pes( 'here gross statistical disparities can be shown, they alone may in a proper
case constitute prima facie proof of a pattern or practice of discrimination( 'e caution,
however, that statistics are not irrefutable! they come in infinite variety and may be
rebutted( 3heir usefulness depends on all of the surrounding facts and circumstances(
R3 "tatistical analyses have served and will continue to serve an important role in cases
in which the eistence of discrimination is a disputed issue(
S P established PF& b9c TgrossT disparities between the Q of blacks in the general
population and the Q in the employer's workforce *F line drivers before claim filed+, in
addition to evidence of individual disparate treatment
S Lsed general population figure as epected Q since no special skills re-uired for line
driver
HaDel/ood Sc*ool Dist5 ,5 US standard deviation
Plaintiff brought suit alleging that school districts practice of hiring proved a pattern or
practice of discrimination against )frican )mericans( .(DQ of school districts teachers
were black! 2(CQ of its new hires were black( 3he $& compared the work force to the
student population and found that the government had failed to make a PF&( &?)
15
reversed and found that the P made a prima facie case of $3 after comparing the
census figures showing that .:(7Q of teachers in the area were )frican )merican to the
racial composition of the school(
I3 'hether a basic component in the &?)s finding of a pattern or practice of
discrimination<the comparatively small percentage of black employees<was lacking in
probative forceK
H3 3he &?) was correct in the view that a proper comparison was between the racial
composition of the teaching staff and the racial composition of the -ualified public school
teacher population in the relevant labor market( 3he &?) erred in substituting its
,udgment for that of the $& and holding that eh government had conclusively proved a
pattern or practice lawsuit( ?nce a PF& has been established by statistical workforce
disparities, the employer must be given an opportunity to show that the claimed
discriminatory pattern is a product of pre-)ct hiring rather than unlawful post-)ct
discrimination( It is clear that a determination of the appropriate comparative figures in
this case will depend upon further evaluation by the trial court(
+al;mart ,5 D$0es
&?) approved certification of a class comprising about one and a half million plaintiffs,
current and former female employees of 'al-#art who alleged that the discretion
eercised by their local supervisors over pay and proportion matter violated 3itle 5II by
discriminating against women( &ommonality was predicated on Hstatistical evidence
about pay and promotion disparities between men and women at the company,
anecdotal reports of discrimination from about .0F of 'al-#art's female employees, and
the testimony of a sociologist, $r( 'illiam 1ielby, who conducted a Usocial framework
analysis' of 'al-#art's Uculture and personnel practices, and concluded that the
company was Uvulnerable to gender discrimination(I
I3 'hether Hcurrent and former female employees of petitioner 'al-#art who allege that
the discretion eercised by their local supervisors over pay and promotion matters
violates 3itle 5II by discriminating against womenI could pursue a class action under
8ule 02K
H3 Ao( 1ecause respondents provide no convincing proof of a companywide
discriminatory pay and promotion policy, we have concluded that they have not
established the eistence of any common -uestion(
&ommonality re-uires Ha common contention--for eample, the assertion of
discriminatory bias on the part of the same supervisorI which is Hof such a nature that it
is capable of class wide resolution--which means that determination of its truth or falsity
will resolve an issue that is central to the validity of each one of the claims in one
stroke(I 3o determine commonality, a trial ,udge must consider the merits of the
underlying claim, though that consideration is limited to satisfaction of the 8ule
02 factors( 3he named representatives had alleged a pattern or practice of
discrimination and sought Hto sue about literally millions of employment decisions at
once(I 3he Du!es ma,ority could not find, however, a sufficiently common denominator
in those decisions to ,ustify class treatment: H'ithout some glue holding the
alleged reasons for all those decisions together, it will be impossible to say that
eamination of all the class members' claims for relief will produce a common answer to
the crucial -uestion w$y was % disfavored(I 3he court eluded to eamples of glue<
testing procedure, company-wide evaluation method, or a general policy of
discrimination(
1ack pay awards dont meet 02*b+*0+ b9c relief is individuali4ed(
16
R3 "tatistical disparities at the regional and national level did not establish that each
store in a region shared a common discriminatory bias( @ocal variations were too likely,
and 'al-#art's defense would be Hsome se-neutral, performance-based criteria--
whose nature and effects will differ from store to store( 3he anecdotes were
concentrated in several "tates, and a nationwide general policy could not be inferred(
Ao fied number of anecdotes eists, HMbNut when the claim is that a company operates
under a general policy of discrimination, a few anecdotes selected from literally millions
of employment decisions prove nothing at all(I
EMPLOYER DE.ENSES TO DISPARATE TREATMENT CLAIMS
%n addition to t$e possibility of limiting liability t$roug$ t$e mixed-motive affirmative
defense and t$roug$ t$e use of after-ac&uired evidence of misconduct, t$ere are two
affirmative defenses available under 'itle (%% t$at exculpate an employer from any liability
w$atsoever) *+, t$e #-./ defense and *0, t$e affirmative action
4ONA .IDE OCCUPATIONAL EUALI.ICATION DE.ENSE
Lnder & '()e"!" of 3itle 5II, an employer can discriminate on the basis of religion, se,
or national origin where those characteristics are a bona fide occupational -ualification
reasonably necessary to the normal operation of that particular business or enterprise(
THE 4.OE DE.ENSE DOES NOT E>TEND TO RACE OR COLOR
DISCRIMINATION5
I. 4$rden
1F?6 is an affirmative defense in which employer bears burden of persuasion
a. To s$ccess%$lly in,o0e t*e 4.OE de%ense2 t*e employer m$st esta#lis*
t/o propositions3
i. 3hat all or nearly all members of the ecluded class cannot preform a
particular ,ob function *or that it is highly impractical to make
individuali4ed determinations of fitness+! and
ii. 3hat this ,ob function is reasonably necessary to the essence of the
defendants business operations(
1. Essence o% 4$siness Test<In order to -ualify as a 1F?6, a
,ob -ualification must relate to the essence or to the central
mission of the employers business(
a. E.g., +ilson ,5 So$t*/est
i. =olding that airline policy forbidding males from
being stewardess could not be ,ustified as a
1F?6 because being a woman was not
necessary to the employers core business: safely
transporting passengers
II. Scope o% de%ense
3he 1F?6 defense is an extremely narrow eception(
a. 3ypically limited to instances where discrimination on the basis of se,
religion, or national origin can be ,ustified on grounds of authenticity, privacy,
or safety(
i. Sa%ety 4ased 4.OE
1. 3hird party safety considerations properly enter into the 1F?6
analysis where the concerns go to the core of the employees
17
,ob performance(
a. E.g.,:
i. Cris/ell 1F?6 defense eculpated employer
from liability concerning policy which ecluded
persons over the age of BF from holding the
position of flight engineer because safety of the
third party passengers were indispensible to the
,ob of a flight engineer
ii. Dot*ard &ourt found se to be a 1F?6
inasmuch as the employment of a female guard
would create real risks of safety to others if
violence broke out because the guard was a
woman! disparate treatment tolerated because
se was related to the guards ability to do the ,ob
R maintaining prison security(
b. Contra
i. =o*nson Controls 1F?6 defense no available
because protecting unconceived fetuses was
neither ,ob related nor within the essence of the
defendants battery-making business(
ii. A$t*enticity 4ased 4.OE
1. &ourts have upheld, on authenticity grounds, policies that
restrict employment in ethnic restaurants to members of
specified ethic groups(
2. &ourts have also recogni4ed a 1F?6 defense to polices that
eclude members of one se from employment in restaurants
or lounges whose primary function is to provide se or
vicarious seual recreation(
iii. Pri,acy 4ased 4.OE
1. 1F?6 has been sanctioned when the discriminatory policy is
,ustified on the basis of traditional notions of privacy, typically
where employees are eposed in various states of undress or
to individuals who are engaged in intimate bodily functions
b. &ourts typically reFect 1F?6s based on the following grounds:
i. Morality #ased 4.OE
ii. Cost #ased 4.OE
1. %(g(, reducing tort liability, workers comp claims, insurance
costs
a. 3he incremental cost of hiring women cannot ,ustify
discriminating against them( =o*nson Controls
iii. C$stomer Pre%erence 4.OE
1. ;enerali4ed assertions that making a profit is necessary to the
essence of the business plan and that only members of one
se can enhance the companys profitability *i(e(, a customer
preference based 1F?6+ are deemed insufficient to establish a
1F?6 defense(
2. "e does not become a 1F?6 merely because an employer
chooses to eploit female seuality as a marketing tool, or to
better insure profitability(
18
=o*nson Controls
%mployer sought to ,ustify policy forbidding women capable of becoming pregnant from
working in a ,ob that presented the risk of birth defects(
I3 'hether employer could establish 1F?6K
H3 Ao( 3he safety eception is limited to instances in which se or pregnancy actually
interferes with the employees ability to perform the ,ob( )n employer must direct its
concerns abut a womans ability to perform her ,ob safely and efficiently to those
aspects of the womans ,ob-related activities that fall within the essence of the particular
business( =ere, the concern for the health of a fetus was independent of the individuals
ability to perform the assigned tasks and no related to the normal operation of the
particular business or enterprise because such women could perform the ,ob as well as
men(
8: 3he statute thus limits the situations in which discrimination is permissible to certain
instances where se discrimination is reasonably necessary to the normal operation of
the particular business( %ach one of the terms<certain, normal, particular<prevents
the use of general sub,ective standards and favors an ob,ective, verifiable re-uirement(
3he term Uoccupation indicates that these ob,ective, verifiable re-uirements must
concern ,ob-related skills and aptitudes(
?ol$ntary A%%irmati,e Action Plan
Stron-;#asis;in;e,idence Standard
Lnder 3itle 5II, before an employer can engage in intentional discrimination for the
asserted purpose of avoiding or remedying an unintentional disparate impact, the
employer must have a strong basis in evidence to believe it will be sub,ect to $I liability
if it fails to take the race-conscious, discriminatory approach( Ricci
A ,alid a%%irmati,e action plan in a Title ?II action m$st3
*.+ intend to eliminate a manifest imbalance in the workplace and
*0+ not unnecessarily trammel the interests of the non-minority employees( +e#er
I. Mani%est Im#alance
a. %stablished by comparing the numbers of a class in the workforce to the
numbers in the relevant labor pool or general population for lower-skilled
,obs( =o*nson ,5 Santa Clara
i. 'here a ,ob re-uires special training , the comparison should be
those in the labor force who possess the relevant -ualifications(
1. Focuses primarily on statistical disparities and need not have
as much evidence as would be re-uired for a prima facie
pattern or practice case(
II. Unnecessarily Trammel
a. )ffirmative action plans must be narrowly targeted to their ,ustifications and
must be as limited as possible to minimi4e the burden on ma,ority
employees(
i. Important Factors in determining whether the plan is valid include:
1. 3he need for the plan to be temporary
2. 3o avoid the plan being an absolute bar to advancement of
ma,ority employees9applicants
19
a. e.g., whether any persons are automatically ecluded
from consideration! all are able to have their
-ualifications weighed against those of other applicants
3. 3he goal to achieve a balance rather than maintain one
4. 3o avoid strict -uotas
5. 3o avoid laying off current employees
6. 3o have fleibility in case conditions change or the goals
become unachievable
a. Plans that use affirmative action goals as only one
aspect of a broader selection process tend to receive
the most favorable reception, such as the holistic review
of law school student admissions 1r$tter
+Y1ANT *AD, p(E00+
.acts3 5))P adopted to establish a racially, seually, / ethnically diverse mgt team to
develop strategies for marketing its products to a racially, seually, / ethnically diverse
clienteleK
Held3 re,ected argument that the Hrole modelI rationale was a sufficiently compelling
interest to support an )) plan governing teacher layoffs in an educational institution
Ta0ea/ay: many companies diversity plans probably cant meet +e#er re-uirements
Ricci ,5 DeSte%ano
%mployer cancelled its promotion process after discovering that its oral and written tests
ad resulted in a racially disparate impact( 3he racial adverse impact was significant and
the &ity was faced with a PF& of $I liability(
I3 'hether the purpose to avoid disparate impact liability ecuses what otherwise would
be prohibited disparate treatment discriminationK
H3 #aybe( 3he strong-basis-in-evidence standard is the proper standard to apply to
resolve any conflict between the disparate treatment and disparate impact provisions of
3itle 5II( 8ace-based action is impermissible under 3itle 5I unless the employer can
demonstrate a strong basis in evidence that, had it not taken the action, it would have
been liable under the disparate-impact statue( 3itle 5II does not prohibit an employer
from considering, before administering a test or practice, how to design that test or
practice in order to provide a fair opportunity for all individuals, regardless of their race(
'e hold only that, under 3itle 5II, before an employer can engage in intentional
discrimination for the asserted purpose of avoiding or remedying an unintentional
disparate impact, the employer must have a strong basis in evidence to believe it will be
sub,ect to $I liability if it fails to take the race-conscious, discriminatory approach(
I3 'hether the employer met the strong-basis-in-evidence standardK
H3 Ao( ) PF& of $I liability<essentially, a threshold showing of a significant statistical
disparity and nothing more<is far from a strong basis in evidence that the &ity would
have been liable under 3itle 5II had it certified the results( 3here is no genuine dispute
that the eaminations were ,ob-related and consistent with business necessity( 3he
employer also lacked a strong basis in evidence of an e-ually valid less-discriminatory
testing alternative because the proposed alternatives were not shown to be an e-ually
valid alternative(
R3 %aminations like those administered by the employer create legitimate epectations
on the part of those who took the tests( That is because the &ity could be liable for $I
only if the eaminations were not ,ob related and consistent with business necessity, or
20
if there eisted an e-ually valid, less discriminatory alternative that served the &itys
needs but that the &ity refused to adopt(
C3 "calia, G( #ade it clear that he though there was a conflict when employers altered
their employment practices to avoid racial dipartites in their workplaces( 8aised issue of
whether the $I theory was consistent with constitutional %-P law(
United Steel/or0ers ,5 +e#er
&hallenged here is the legality of an affirmative action plan<collectively bargained by
an employer and a union<that reserves for black employees :FQ of the openings in an
in-plant craft-training program until the percentage of black craftworkers in the plant is
commensurate with the percentage of blacks in the local labor force(
I3 'hether &ongress, in 3itle 5II left employers and union in the private sector free to
take such race-conscious steps to eliminate manifest racial imbalances in traditionally
segregated ,ob categoriesK
H3 Pes( 3itle 5IIs prohibition in JCF2*a+ and *d+ against racial discrimination does not
condemn all private, voluntary, race conscious affirmative action plans( 'e need not
define in detail the line of demarcation between permissible and impermissible
affirmative action plans( It suffices to hold that the challenged affirmative action plan falls
on the permissible side of the line5
R3 3he purposes of the plan mirror those of the statute: *a+ $esigned to break down old
patterns of racial segregation and hierarchy and *b+ "tructured to open employment
opportunities for negroes in occupations which have been traditionally closed to them
3he plan does not unnecessarily trammel the interest of the white employees: *a+ 3he
plan does not re-uire disc$arge of white workers! *b+ 3he plan does not create an
absolute bar to the advancement of white employees! and *c+ 3he plan is a temporary
measure(
=o*nson ,5 Santa Clara
#ale employee who was passed over for promotion in favor of female employee brought
3itle 5II suit against county transportation agency(
I3 'hether consideration of the se of the applicants for skilled craft ,obs was ,ustified by
the eistence of a manifest imbalance that reflected underrepresentation of women in
traditionally segregated ,ob categoriesK
H3 Pes( ;iven the obvious imbalance in the "killed &raft category, and given the
)gency's commitment to eliminating such imbalances, it was plainly not unreasonable
for the )gency to determine that it was appropriate to consider as one factor the se of
#s( Goyce in making its decision( 3he promotion of Goyce thus satisfies the first
re-uirement enunciated in 1eber, since it was undertaken to further an affirmative
action plan designed to eliminate )gency work force imbalances in traditionally
segregated ,ob categories(
I3 'hether the plan unnecessarily trammeled the rights of male employees or created
an absolute bar to their advancementK
H3 Ao( "ubstantial evidence shows that the )gency has sought to take a moderate,
gradual approach to eliminating the imbalance in its work force, one which establishes
realistic guidance for employment decisions, and which visits minimal intrusion on the
legitimate epectations of other employees( ;iven this fact, as well as the )gency's
epress commitment to HattainI a balanced work force, there is ample assurance that
the )gency does not seek to use its Plan to HmaintainI a permanent racial and seual
21
balance(
RETALIATION
%t is an unlawful employment practice for an employer to discriminate against an employee
because t$at employee $as opposed any practice made unlawful under 'itle (%% or
because $e participated in any manner in proceedings to enforce t$ese statutes.
*a+ Discrimination %or ma0in- c*ar-es2 testi%yin-2 assistin-2 or participatin- in
en%orcement proceedin-s
It shall be an unlawful employment practice for an employer to discriminate against any
of his employees or applicants for employment, ( ( ( because he has opposed any
practice made an unlawful employment practice by this subchapter, or because he has
made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter( J CF7*a+, )$%)
5
3he primary ob,ective of J CF7*a+ is to prevent conduct that might well have discouraged
a reasonable employee from engaging in protected activity( For retaliation to be
actionable, harm must be *.+ materially adverse *0+ to a reasonable employee or ,ob
applicant
.rame/or0 at a 1lance
1. P- Prima Facie &ase
*a+ %ngaged in statutorily protected activity
*b+ #aterially adverse action
*c+ &ausal &onnection
2. $-@A$8
3. P-Pretet
.rame/or0
1. 3he burden is on the plaintiff to establish a prima facie case of retaliation
a. 3he plaintiff must prove:
i. 3hat she was engaged in a stat$torily protected acti,ity!
1. Lnder either:
a. Participation &lause
b. ?pposition &lause
ii. 3hat she suffered a materially ad,erse action at the hands of the
employer! and
1. 3he employers actions must be harmful to the point that they
could well dissuade a reasonable worker from making or
supporting a charge of discrimination( 4$rlin-ton ,5 +*ite
3he significance of any given act of retaliation will often depend on the particular
circumstances / should be ,udged from the perspective of a reasonable person in the
5 & G()#" of the )$) makes is unlawful to coerce, intimidate, threaten, or interfere with an
individual based on the eercise of rights under the )$) or because an individual has
aided or encouraged any individual in the eercise or en,oyment of rights provided under
the )$)(
22
plaintiffs position( &ontet matters( 3he standard is tied to the challenged retaliatory act,
not the underlying conduct that forms the basis of the 3itle 5II complaint( 4$rlin-ton ,5
+*ite
TEST
a. 8eassignment of Gob $uties
i. 3o be sure, reassignment of ,ob duties is not
automatically actionable( 'hether a particular
reassignment is materially adverse depend on the
circumstances of the particular case, and should
be ,udged from the perspective of a reasonable
person in the plaintiffs position considering all the
circumstances(
b. "uspension
i. )n indefinite suspension without pay could well
act as a deterrent, even if the suspended
employee eventually received back pay(
2. )dverse employment actions in the contet of retaliation are
not limited to those that occur within the workplace<e.g., F1Is
refusal to investigate a death threat made against an agent
constituted actionable retaliation under 3itle 5II, malicious
criminal charge filed by the employer against a former
employee constituted actionable retaliation under 3itle 5II
3. At the hands of the employer<where a supervisory
employee with the power to
hire9fire9demote9transfer9suspend9investigate an employee is
shown to have sued that authority to retaliate for the filing of a
charge of seual harassment, the plaintiff need not also prove
that the employer participated in or knew or should have known
of the retaliatory conduct(
iii. 3hat a ca$sal lin0 eists between the protected activity and the
adverse action(
6

1. 3he causal link between the employees protected activity and
the employers materially adverse action can be established by
showing that the protected conduct and the adverse action are
not wholly unrelatedS &onstrued broadly
a. %vidence %stablishing &ausation
i. $irect evidence of retaliatory animus
ii. Proof that other employees who engaged in
protected activity were also sub,ected to adverse
employment action
iii. 3emporal proimity between adverse employment
action and protected activity
1. &ircuit split regarding whether temporal
proimity alone is sufficient to establish a
causal link in retaliation cases
a. .F
th
9..
th
97
th
90
nd
hold that temporal
6 (oe courts require the ) to pro!e a fourth eleent*that the defendant has +no#led"e of the
protected acti!it%$ #hereas others include this e!idence as part of the first eleent$ or iplicitl%$ as
art of the plaintiff,s e!idence of causation.
23
proimity alone is sufficient
b. 2
rd
9:
th
9D
th
re-uire that temporal
proimity be combined with some
other evidence of retaliation even to
survive "G
2. )s the temporal distance between the
protected activity and the adverse
employment action increases, the less
likely it is that the causal element can be
established(
2. )n employers proven lack of knowledge that the employee
engaged in protected activity has been found to be fatal to a
prima facie showing of causation(
b. 3he prima facie case establishes a rebuttable presumption of unlawful
retaliatory motive(
2. 3he burden of production shifts to the employer to rebut the presumption of
unlawful retaliation by articulating a LNDR for the adverse action
3. T*e plainti%% t*en *as t*e $ltimate #$rden o% pro,in- prete7tHi5e5 t*at t*e
ad,erse action /as moti,ated #y retaliatory anim$s
Mi7ed Moti,e Retaliation
"ome courts have held that the mied motive proof scheme in the &ivil 8ights )ct of .EE.
is available to 3itle 5II plaintiffs brining retaliation claims( ?ther courts have held that the
mied-motive damages provisions are not applicable in 3itle 5II retaliation cases and that
in cases where a mied motive approach may be appropriate, the court must apply 2rice
1ater$ouse(
Scope o% Stat$torily Protected Acti,ity
I. Opposition Cla$se
Prohibits retaliation because an employee or applicant has *.+ opposed any
practice *0+ made an unlawful employment practice(
a. &ourts have generally narrowly construed protection under the opposition
clause and granted less protection for opposition than participation in
enforcement proceedings(
i. Opposed any practice
1. Stat$torily Protected Acti,ities Under Opposition Cla$se3
a. 3he term oppose, being left undefined by the statute,
carries its ordinary meaning, to resist or antagoni4e, to
contend against, to confront, resist, withstand(
b. 'hen an employee communicates to her employer a
belief that the employer has engaged in a form of
employment discrimination, that communication virtually
always constitutes the employees opposition to the
activity(
c. ?pposition eists if an employee takes a stating against
an employers discriminatory practices even if the
employee does not instigate the action
2. Acti,ities O$tside Scope o% Opposition Cla$se
a. )n employee is not protected when he violates
legitimate rules and order of his employer, disrupts the
24
employment environment, or interferes with the
attainment of his employers goals(
b. Participation in stall in
c. %ngaging in political activity for womens liberation on
company time
d. #isappropriation or unauthori4ed copying and
distribution of an employers documents, especially
confidential documents, even if the employees intent is
to substantiate her own claim or unlawful employment
discrimination or to assist her co-worker in a claim of
employment discrimination(
ii. Made Unla/%$l 4y Title ?II
Aot all opposition is protected, the opposition must be of an
employment practice made unlawful by 3itle 5II(
1. It is enough for the legal protection that an employee had a
reasona#le and -ood %ait* #elie% that the opposed practice
violated 3itle 5II( 4reeden
b. 4alancin- Test
i. &ourts are re-uired to balance the purpose of 3itle 5II to protect
persons engaging reasonably in activities opposing discrimination,
against &ongress e-ually manifest desire not to tie the hands of
employers in the ob,ective selection and control of personnel( 3he
re-uirements of the ,ob and the tolerable limits of conduct in a
particular setting must be eplored(
1. 3here may arise instances where the employees conduct in
protest of an unlawful employment practice so interferes with
the performance of his ,ob that it renders him ineffective in the
position for which he was employed( In such a case, his
conduct or form of opposition is not covered(
II. Participation Cla$se
Prohibits retaliation because an individual has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or
hearing to enforce laws prohibiting discrimination in employment /it*o$t
re-ard to /*et*er t*e alle-ations /ere ,alid or reasona#le5
a. 3he &ourts have broadly construed the protected afforded employees by the
participation clause(
i. Stat$torily Protected Acti,ities Under Participation Cla$se:
1. Filing charge with %%?&9state agency
2. Participates in 3itle 5II investigation, proceeding, or hearing on
their own behalf or on behalf of another
3. %ncourages co-workers to enforce their 3itle 5II rights
4. 8efuses to sign an inaccurate affidavit on behalf of employer
5. 3estifies on behalf of a co-worker
6. )ids the state or federal investigating authority
7. Participates in a conciliation meeting on behalf of co-worker
8. "ubmits affidavits on behalf of coworkers to %%?&
9. "ubmits non-confidential documentary evidence to an agency
investigating a discrimination complaint(
ii. Acti,ities O$tside o% Scope o% Participation Cla$se
1. &laims brought in bad faith
25
a. ) title 5II complaint that is not only unreasonable and
meritless, but also motivated by #ad %ait* may not be
protected under the participation clause(
2. Participation in Internal investigation n( 0 p( .BC
a. ..th &ir( held that participating in an employers internal,
in-house investigation, conducted apart from a formal
charge with %%?& was not protected activity(
i. Contra In another case, ..th &ir( held that
because the information the employer gathers as
part of its investigation in response to t*e notice
o% discrimination will be utili4ed by the %%?&, it
follows that an employee who participates in the
employers process of gathering such information
is participating, in some manner, with the %%?&
investigation(
iii. Employer is lia#le %or retaliation i% t*e employer3
1. Promulgates a rule prohibiting employees from cooperating in
3itle 5II investigations without prior supervisory approval
2. &oercively interview employees under circumstances that
could render their testimony involuntary
3. Fails to prevent harassment of an employee by co-workers
would give the employer notice that they intend to engage in
harassment of the employee
b. 3he participation clause protects employees and applicants from retaliation
regardless of the underlying merits of the claim(
Indi,id$als Protected .rom Retaliation
1. %mployees
2. Former %mployees
3. )pplicants
4. 3hird Parties
a. Individuals can be victims of actionable retaliation under
the theory of third-party reprisal(
Ione o% Interest TEST
"tatute provides that a civil action may be brought by the person claiming to be
aggrieved( 3he term aggrieved in 3itle 5II incorporates the U4one of interest test,
enabling suit by any plaintiff with an interest arguably sought to be protected by the
statute, while ecluding plaintiffs who might technically be in,ured in an )rticle III sense
but whose interest are unrelated to the statutory prohibitions in 3itle 5II( T*ompson
Pett/ay ,5 American Cast Iron Pipe Co5
;roup of black employees who had previously filed a charge with %%?&, sent a letter to
the %%?& complaining about the racially discriminatory practices of the employer( 3he
letter suggested that a company official had bribed an %%?& official( 3he employer
discharged the employee who sent the letter on the grounds that he had made
malicious and untrue statement about the employer in his letter to the %%?&(
I3 'hether the employee had engaged in statutorily protected activity under the
participation clauseK
26
H3 Pes( 3he letter was protected conduct under 3itle 5II, even if a trial court agreed that
the letter contained misstatements and potentially libelous statements( 'e in no way
imply that an employer is preempted by 3itle 5II from vindicating his reputation through
resort to a civil action for malicious defamation(
Cra/%ord ,5 Metro 1o,:t
3estimony had been given by employee, not by her own choice, pursuant to a company
investigation into alleged seual harassment of another employee( %mployer fired
plaintiff shortly after finishing the investigation, alleging it was for embe44lement( 3he
plaintiff alleged that she was fired in retaliation for her report of the harassment(
I3 'hether plaintiff engaged in statutorily protected activity under opposition clauseK
H3 Pes( 3he term oppose, being left undefined by the statute, carries its ordinary
meaning, to resist or antagoni4e, to contend against, to confront, resist, withstand(
'hen an employee communicates to her employer a belief that the employer has
engaged in a form of employment discrimination, that communication virtually always
constitutes the employees opposition to the activity( ?ppose goes beyond active,
consistent, behavior in ordinary discourse, where wee would naturally use the word to
speak of someone who has taken no action at all to advance a position beyond
disclosing it( "o opposition eists if an employee takes a stating against an employers
discriminatory practices even if the employee does not instigate the action( 3hus, the
statement plaintiff says she gave to her employer is thus covered by the opposition
clause(
R3 Ao reason eisted to doubt that a person can oppose by responding to someone
elses -uestion ,ust as surely as by provoking the discussion, and nothing in the statute
re-uires a freakish rule protecting an employee who reports discrimination on her own
initiative but not one who reports the same discrimination in the same words when her
boss asks a -uestion( If this were so, prudent employees would have a good reason to
keep -uiet about 3itle 5II offenses against themselves or against others(
T*ompson ,5 N5 Am5 Stainless
Plaintiff and fiancV were employees of defendant( %mployer notified that fiancV filed
charge alleging se discrimination( 3hree days later plaintiff was fired( Plaintiff sued
employer alleging that the employer had fired him in order to retaliate against fiancV for
filing her charge with the %%?&( $& granted "G for employer, holding that 3itle 5II does
not permit third party retaliation claims( 3he "ith &ircuit affirmed holding that plaintiff is
not included in the class of persons for whom &ongress created a retaliation &?)(
I3 'hether the employers firing of plaintiff constitute unlawful retaliationK
H3 Pes( 'e have little difficulty concluding that if the facts alleged by the plaintiff are
true, then the employers firing of him violated 3itle 5II( 3itle 5IIs antiretaliation
provision must be construed to cover a broad range of employer conduct( 3he
antiretaliation provision, unlike the substantive provision, is not limited to discriminatory
actions that affect the terms and conditions of employment( 8ather, 3itle 5IIs
antiretaliation provision prohibits any employer action that well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination( 'e think it
obvious that a reasonable worker might well be dissuaded from engaging in protected
conduct( 'e epect that firing a close family member will almost always meet the
#urlington standard, and inflicting a milder reprisal on a mere ac-uaintance will almost
never do so, but beyond that we are reluctant to generali4e(
27
R3 'e think there is no tetual basis for making an eception to the broad #urlington
standard for third-party reprisals, and a preference for clear rules cannot ,ustify
departing from statutory tet( ;iven the broad statutory tet and the variety of workplace
contets in which retaliation may occur, 3itle 5IIs antiretaliation provision is simply not
reducible to a comprehensive set of clear rules(
I: 'hether the plaintiff may sue the employer for its alleged violation of 3itle 5IIK
H3 Pes( "tatute provides that a civil action may be brought by the person claiming to be
aggrieved( 3he term aggrieved in 3itle 5II incorporates the U4one of interest test,
enabling suit by any plaintiff with an interest arguably sought to be protected b the
statutes, while ecluding plaintiffs who might technically be in,ured in an )rticle III sense
but whose interest are unrelated to the statutory prohibitions in 3itle 5II( Plaintiff falls
within the 4one of interests protected by 3itle 5II( 3hus, he is person aggrieved with
standing to sue(
R3 Plaintiff was an employee of defendant, and the purpose of 3itle 5II is to protect
employees from their employers unlawful actions( Plaintiff is not an accidental victim of
retaliation<rather, in,uring him was the employers intended means of harming his
fiancV( =urting him was the unlawful act by which the employer punished her(
Clar0 Cnty5 Sc*5 Dist5 ,5 4reeden
Plaintiffs male supervisor met with plaintiff and another male employee to review the
psychological eval of four ,ob applicants( 3he report for one of the applicants provided
that the applicant once said HI hear making love to you is like making love to the ;rand
&anyon(I "upervisor said HI dont know what that means(I ?ther employee replied H'ell,
Ill tell you about it later( &huckling ensued( Plaintiff complained to offending employee
and claimed she was punished for doing so(
I3 'hether she engaged in statutorily protected activityK
H3 Ao( "eual harassment is actionable under 3itle 5II only if it is so severe or pervasive
as to alter the conditions of the victims employment and create an abusive working
environment( "imple teasing, offhand comments, and isolated incidents will not amount
to discriminatory changes in the terms and conditions of employment( Ao reasonable
person could have believed that the single incident above violated 3itle 5IIs standard(
4$rlin-ton Nort*ern 9 Santa .e ,5 +*ite
Plaintiff originally employed as fork lift operator( "he complained to =8 officials that her
supervisor was discriminating against her on the basis of se( Plaintiff was subse-uently
removed from forklift duty and assigned to perform only standard track laborer tasks(
Plaintiff filed charge with %%?&( %mployer subse-uently suspended plaintiff without pay
after her supervisor told =8 official that plaintiff had been insubordinate( Plaintiff was
reinstated through internal grievance procedure( $& found that employers actions
amounted to unlawful retaliation(
I3 'hether 3itle 5IIs anti-retaliation provision forbids only those employer actions and
resulting harms that are related to employment or the workplaceK
H3 Ao( 3he anti-retaliation provision does no confine the actions and harms it forbids to
those that are related to employment or occur at the workplace( 3he provision covers
those *and only those+ employer actions that would have been materially adverse to a
reasonable employee or ,ob applicant(
I3 =ow harmful must an act of retaliatory discrimination be in order to fall within the
provisions scopeK
28
H3 3he employers actions must be harmful to the point that could well dissuade a
reasonable worker from making or supporting a charge of discrimination( 3he anti-
retaliation provision seeks to prevent employer interference with unfettered access to
3itle 5IIs remedial mechanisms( It does so by prohibiting employer actions that are
likely to deter victims of discrimination from complaining to the %%?&, the courts, and
their employers( )nd normally petty slights, minor annoyances, and simple lack of good
manners will not create such deterrence( 3he significance of any given act of retaliation
will often depend on the particular circumstances( &ontet matters( 3he standard is tied
to the challenged retaliatory act, not the underlying conduct that forms the basis of the
3itle 5II complaint(
R3 3itle 5IIs antiretaliation provision must be construed to cover a broad range of
employer conduct( 3he antiretaliation provision, unlike the substantive provision, is not
limited to discriminatory actions that affect the terms and conditions of employment(
Clar0 Cnty5 Sc*5 Dist5 ,5 4reeden Part De$7
3o show eistence of causal connection, plaintiff relied wholly on the temporal proimity
of the filing of her complaint and supervisors statement nine days later that she was
considering transferring plaintiff( =owever, plaintiff did not serve employer with
summons and complaint until the day after supervisor made the statement( Plaintiff
claimed that employer received right to sue letter three months prior to transfer(
I3 'hether plaintiff established causal connectionK
H3 Ao( %mployers need not suspend previously planned transfer upon discovering that a
3itle II suit has been filed, and their proceeding along lines previously contemplated,
though not definitely determined, is no evidence whatever of causality( 3emporal
proimity between an employers knowledge of protected activity and an adverse
employment action must be very close to provide sufficient evidence of causality to
establish a prima facie case( )ction taken, as here, 0F months later suggests, by itself,
no causality at all(
DISPARATE IMPACT
7
In a disparate impact case, the central -uestion turns on whether an employment action
has a discriminatory impact or effect( Prohibits employment practices that are facially
neutral in their treatment of different groups but that in fact fall more harshly on one group
than another / cannot be ,ustified by business necessity(
It shall be an unlawful employment practice for an employer to limit, segregate, or
classify his employees or applicants for employment in any way which would deprive or
tend to deprive any individual of employment opport$nities or otherwise adversely
affect his status as an employee, because of such individuals race, color, religion, se,
or national origin( &'()a"A"
0" 4$rden o% proo% in disparate impact cases
!"A" )n unlawful employment practice based on disparate impact is established under
this subchapter only if--
i" a complaining party demonstrates that a respondent uses a partic$lar employment
7 )laintiffs ha!e an incenti!e to brin" cases under the -. rather than -I theor% because daa"es
are a!ailable for -. cases but not for -I cases.
29
practice that ca$ses a disparate impact on the basis of race, color, religion, se, or
national origin and the respondent fails to demonstrate that the challenged practice is
Fo# related for the position in -uestion and consistent with #$siness necessity! or
ii" the complaining party makes the demonstration described in subparagraph *&+ with
respect to an alternative employment practice and the respondent re%$ses to adopt
s$c* alternati,e employment practice(
4"i" 'ith respect to demonstrating that a particular employment practice causes a
disparate impact as described in subparagraph *)+*i+, the complaining party shall
demonstrate that each particular challenged employment practice causes a disparate
impact, ecept that if the complaining party can demonstrate to the court that the
elements of a respondent's decision making process are not capable of separation for
analysis, the decision making process may be analy4ed as one employment practice(
ii" If the respondent demonstrates that a specific employment practice does not cause
the disparate impact, the respondent shall not be re-uired to demonstrate that such
practice is re-uired by business necessity(
C" 3he demonstration referred to by subparagraph *)+*ii+ shall be in accordance with
the law as it eisted on Gune 7, .EDE, with respect to the concept of Halternative
employment practiceI(
DI cases *a,e t*ree primary sta-es
.: 3he PF& "tage: %stablishing a $I
0: 3he Gustification "tage: %stablishing 1usiness Aecessity9Gob 8elatedness
2: 3he )lternative Practice "tage: %stablishing a @ess $iscriminatory )lternative
.rame/or0
I. 4$rden on Plainti%% to esta#lis* prima %acie case3 eit*er #y
a. 1urden on plaintiff to establish that a partic$lar employment practice
ca$sed a discriminatory impact on a protected class & '()0"!"A"i"
i. Particular %mployment Practices
1. "ub,ective &riteria
2. ?b,ective &riteria
ii. Proo% o% DI ; Statistics
8

3he most common means is to demonstrate that the observed
number of hire or promotions is statistically significantly different from
what one would epect in a neutral selection process
1. 3o establish a prima facie $I case, employees must show the
eistence of a disparity that is statistically significant(
a. .o$r;.i%t*s R$le: $isparate impact will be presumed if
the minoritys success rate under a challenged
employment policy is e-ual to or less than four-fifths
*DFQ+ of the ma,oritys success rate(
'hite pass rate: :FQ
0FF applicants, .FF passed
test
79: of white pass rate: 7FQ
*79: W :FQ > 7FQ+
If the black pass rate is
above 7FQ, no prima facie
case( If black pass rate is
7FQ or below, prima facie
8 /nli+e pattern 0 practice cases$ the statistical data in -I cases are not tr%in" to hi"hli"ht an eplo%er,s
discriinator% oti!e. 1ather$ the statistics in theses cases are atteptin" to sho# that a seein"l% neutral polic% is
ne"ati!el% affectin" one class si"nificantl% ore than another.
30
case(
1lack pass rate: 0:Q
.FF applicants, 0: passed
test
Prima facie case, because
0:Q is lower than 7FQ(
2. Comparator E,idence
a. Standard De,iation
b. M$ltiple Re-ression Analysis
iii. Ca$sation
1. )s a general matter, a plaintiff must demonstrate that it is the
application of a specific or particular employment practice that
has created the disparate impact under attack( +ards Co,e
a. 3he plaintiff must offer statistical evidence of a kind and
degree sufficient to show that the practice in -uestion
has caused the eclusion of applicants for ,obs or
promotions because of their membership in a protected
group(
i. 3he statistical disparities must be sufficiently
substantial that they raise an inference of
causation(
b. If the plaintiff can demonstrate to the court that the elements of an
employers decision-making process are not capa#le o% separation for
analysis, the decision-making process may be analy4ed as one employment
practice( & '()0"!"4"i"
i. i(e( Plaintiff can establish prima facie evidence of $I by showing
imbalanced bottom line(
1. 1ottom @ine $efense
9
<Lnder 3itle 5II, a racially balanced
work force cannot immuni4e an employer from liability for
specific acts of discrimination(
ii. 3his eception occurs when a decision-making process includes
particular, functionally-integrated practices which are components of
the same criterion, standard, method of administration, or test, such
as a height and weight re-uirement
c. 3he employer may then challenge the validity of the statistical evidence &
'()0"!"4"ii"
i. E.g., small or incomplete data sets, inade-uate statistical techni-ues,
sample pool containing un-ualified individuals
II. 1urden of persuasion and production shifts to employer to prove that the
challenged practice is a #$siness necessity that is related to Fo#
per%ormance( & '()0"!"A"i"
a. 4$siness Necessity
i. 3he employer must show that the challenged practice bears a
demonstrable relationship to successful performance of the ,ob for
which it was used( 1ri--s
Minim$m E$ali%ications Standard
9 /nder this theor%$ an eplo%er,s acts of racial discriination in prootions*effected b% an e2aination ha!in"
disparate ipact*#ould not render the eplo%er liable for the racial discriination suffered b% eplo%ees barred fro
prootion if the botto3line result of the prootional process #as an appropriate racial balance.
31
In order to survive a $I challenge, the burden of persuasion and production shifts to the
employer<the challenged practice must be shown to measure the minimum
&ualifications necessary for the successful performance of the of the ,ob in -uestion(
b. Pro%essionally ?alidated Test De%ense
i. Lnder &'()*" of 3itle 5II, an employer can given and act upon the
results of any professionally developed ability test provided that such
test, its administration or action upon is not designed, intended or
used to discriminate(
1. &'()*" permits only the use of ,ob-related tests( 1ri--s
a. ?alidation
10
i. Criterion Validation
1. 8efers to a correlation between an
individuals test score and actual ,ob
performance *i(e( @anning+
2. "ome sub,ectiveness is tolerable in
validation studies, but employers must be
careful to establish well defined guidelines
for evaluations and to monitor how they
are being made
ii. Content Validation
1. 8efers to a correlation between the skills
and knowledge being tested and those
needed for ,ob performance
a. e.g., Aational 3eachers %ams
acceptable despite $I because of
the correlation between the
knowledge contained in the eams
and the knowledge contained in the
teacher training programs
iii. Construct Validation
1. 8efers to a correlation between certain
personal characteristics and ,ob
performance<often used to measure
abstract -ualities needed for a ,ob, such as
creativity
a. E.g., general intelligence or
personality test that seeks to identify
certain traits needed for a ,ob
c. 4ona .ide Seniority System De%ense
i. & '()*" provides that it is not unlawful under 3itle 5II for an employer
to apply different standards of compensation, or different 39&9P of
employment pursuant to a bona fide seniority or merit system
provided that such difference are not the result of an intention to
discriminate(
1. 3he &ourt has held that<Aondiscriminatory means that the
seniority system is facially nondiscriminatory and that the
employer did not intend for the system to discriminate(
10 .%picall%$ #hether a particular test satisfies the 703&h' e2ception centers on the concept of
!alidation.
32
a. 3hus, &'()*" effectively makes bona fide seniority
systems immune from $I challenges( )ccordingly, for a
facially nondiscriminatory seniority system to violate 3itle
5II, there must be proof that the employer intended for
the system to discriminate(
III. 1urden then shifts to plaintiff to show that an alternative practice would serve the
employers needs without causing the same degree of discrimination / that the
employer refused to adopt that practice & '()0"!"A"ii"
a. Plaintiff must prove that another, less discriminatory, policy would serve the
employers legitimate interest in efficient and trustworthy workmanship
i. Factors such as the cost or other burdens of proposed alternative
selection devices are relevant in determining whether they would be
e-ually as effective as the challenged practice in serving the
employers legitimate goals( +atson
ii. ?ne court has defined this test to mean<3he proposed alternative
must be available, e-ually valid, and less discriminatory
Con,ersion Doctrine n( .. p( 00E
%mployer defends a $3 claim by reference to neutral, merit based rules( 3he plaintiff
then uses those rules as the basis for a $I claim( ?ften the employer had not validated
those rules because of costs(
1ri--s ,5 D$0e Po/er Co
Plaintiffs brought action under 3itle 5II alleging that they were sub,ect to racial
discrimination because the employer re-uired a high school education or passing of a
standardi4ed test to be employed in certain ,obs(
I3 'hether an employer is prohibited by 3itle II, from re-uiring a high school education
or passing of a standardi4ed test as a condition of employment in or transfer to ,obs
when *a+ neither standard is shown to be significantly related to successful ,ob
performance, *b+ both re-uirements operate to dis-ualify Aegroes at a substantially
higher rate than white applicants, and *c+ the ,obs in -uestion formally had been filled
only by white employees as part of a longstanding practice of giving preference to
whitesK
H3 Pes( Lnder the act, practices, procedures, or test neutral on their face, and even
neutral in terms of intent, cannot be maintained if they operate to free4e the status &uo
of prior discriminatory employment practices( 3he )ct proscribes not only overt
discrimination but also practices that are fair in form, but discriminatory in operation( 3he
touchstone is business necessity( If an employment practice which operates to eclude
negroes cannot be shown to be related to ,ob performance, the practice is prohibited(
&ongress has placed on the employer the burden of showing that any given
re-uirement must have a manifest relationship to the employment in -uestion(
JCF2*h+ permits only the use of ,ob-related tests(
Aeither the high school completion re-uirement nor the general intelligence test is
shown to bear a demonstrable relationship to successful performance of the ,obs for
which it was used(
R3 3he employees who have not completed high school or taken the tests have
continued to preform satisfactorily and make profess in departments for which the high
school and test criteria are not used(
&ongress did not intend by 3itle 5II to guarantee a ,ob to every person regardless of
33
-ualifications( 'hat is re-uired is the removal of artificial arbitrary and
unnecessary barriers to employment when barriers operate invidiously to discriminate
on the basis of racial or other impermissible classification(
Connectic$t ,5 Teal
%mployees brought disparate impact claim against employer after being denied
promotion because of failing to pass a written eamination( :7(.C percent of black
candidates passed while BD percent of the white candidates passed( 3he overall result
of the selection process was that 00(E percent of the passing black candidates were
promoted while .2(: percent of passing white candidates were promoted(
I3 'hether an eamination that bars a disparate number of black employees from
consideration for promotion and that has not been shown to be ,ob related, presents a
claim cogni4able under 3itle 5IIK
H3 Pes( JCF7*a+*0+ prohibits discriminatory artificial, arbitrary, and unnecessary barriers
to employment, that limit or classify applicants for employment in any way which would
deprive or tend to deprive any individual of employment opportunities(
I3 'hether an employer sued for violation of 3itle 5II may assert a bottom line theory of
defenseK
H3 Ao( JCF2*a+*0+ prohibits practices that would deprive or tend to deprive any individual
of employment opportunities( Lnder 3itle 5II, a racially balanced work force cannot
immuni4e an employer from liability for specific acts of discrimination(
R3
3he suggestion that disparate impact should be measured only at the bottom line
ignores the fact that 3itle 5II guarantees these individual respondents the opportunity to
compete e-ually with white workers on the basis of ,ob-related criteria
3he statute speaks, not in terms of ,obs and promotions, but in terms of limitations and
classifications that would deprive any individual of employment opportunities(
It is clear that &ongress never intended to given an employer license to discriminate
against some employees on the basis of race or se merely because he favorably treats
other members of the employees group
D3 G( Powell, 8ehn-uist, / ?&onnor
$isparate impact cases consistently have considered whether the result of an
employers total selection process had an adverse impact upon the protected group(
'hile disparate treatment cases focus on the way in which an individual has been
treated, disparate impact cases are concerned with the protected group(
+atson ,5 .ort +ort*
1lack teller brought $I claim against bank after being passed over for supervisor
position by whites with less eperience than her( 3he 1ank had not developed a precise
and formal criteria for evaluating candidates and instead relied on the sub,ective
,udgment of supervisors who were ac-uainted with the candidates and with the nature
of the ,obs to be filled( )ll of the supervisors who denied plaintiffs promotion were white(
I3 'hether the 3riggs disparate impact analysis applies to sub,ective criteriaK
H3 Pes( "ub,ective or discretionary employment practices may be analy4ed under the
disparate impact approach in appropriate cases(
R3 3riggs would be nullified if $I were applied only to standardi4ed selection practices(
$I analysis in in principle no less applicable to sub,ective employment criteria than to
ob,ective or standardi4ed tests(
34
I3 'hat evidentiary standards should apply in such casesK
H3 3he plaintiffs burden in establishing a prima facie case goes beyond the need to
show that there are statistical disparities in the employers work force( 3he plaintiff must
begin by identifying the specific employment practice that is challenged( %specially in
cases where an employer combines sub,ective criteria with the use of more rigid
standardi4ed rules or tests, the plaintiff is in our view responsible for isolating and
identifying the specific employment practices that are allegedly responsible for any
observed statistical disparities( ?nce the employment practice at issue has been
identified, causation must be proved! that is the plaintiff must offer statistical evidence of
a kind and degree sufficient to show that the practice in -uestion has caused the
eclusion of applicants for ,obs or promotions because of their membership in a
protected group( 3he statistical disparities must be sufficiently substantial that they raise
an inference of causation( 3he burden then shifts to the employer of showing that the
challenged practice has a manifest relationship to the employment in -uestion( 3hen,
the plaintiff must show that other tests or selection devices, without a similarly
undesirable racial effect, would also serve the employers legitimate interest in efficient
and trustworthy workmanship( Factors such as the cost or other burdens of proposed
alternative selection devices are relevant in determining whether they would be e-ually
as effective as the challenged practice in serving the employers legitimate goals(
R3 %videntiary standards should serve as ade-uate safeguards against placing undue
pressure on employers to adopt preferential treatment9-uota policies( In the contet of
sub,ective or discretionary employment decisions, the employer will often find it easier
than in the case of standardi4ed tests to produce evidence of a manifest relationship to
the employment in -uestion( &ourts are generally less competent than employers to
restructure business practices and unless mandated to do so by &ongress they should
not attempt it(
+ards Co,e
Plaintiffs employees in salmon cannery that was open only during the summer salmon
runs( 3he employer hired two broad types of employees: .+ cannery employees who
performed largely low skilled ,obs and 0+ non cannery employees who were either
skilled employees such as engineers and machinist or low skill employees who
performed work in the non-cannery party of the worksite( 3he cannery and non-cannery
employees were largely segregated both at work and where they lived during the
salmon runs( 3hey were hired in different manners( 3he cannery employees were hired
in )laska and were almost entirely Filipino or nonwhite )laskans( Aon-cannery
employees, were hired eclusively in the Pacific A' and were mainly white( 3he
nonwhite cannery employees sued under 3itle 5II, making both $3 and $I claims( 3o
prove the $I claim, the plaintiffs pointed to practices of nepotism, rehire preferences,
lack of ob,ective hiring criteria, and a practice of not promoting from within( 8elying on
the plaintiffs statistics showing a high percentage of nonwhite workers in the cannery
,obs and a low percentage of such workers in non-cannery positions, the &?) held that
the plaintiffs made a prima facie case of $I in hiring(
I: 'hether the &?) erred in holding that the plaintiffs made out a PF& of $IK
=: Pes( 3he comparison fundamentally misconceived the role of statistics in employment
discrimination cases( 3he proper comparison is between the racial composition of the
at-issue ,obs and the racial composition of the -ualified population in the relevant labor
market( It is such a comparison<between the racial composition of the -ualified
persons in the labor market and the persons holding at-issue ,obs<that generally forms
35
the proper basis for the initial in-uiry in a $I case( )lternatively, in cases where such
labor market statistics will be difficult if not impossible to ascertain, we have recogni4ed
that certain other statistics<such as measures indicating the racial composition of
otherwise--ualified applicants for at-issue ,obs are e-ually probative for this purpose(
3he cannery work force in no way reflected the poor of -ualified ,ob applicants or the
-ualified population in the labor force( If the absence of minorities holding such skilled
positions is due to a dearth of -ualified nonwhite applicants, the employers selection
methods or employment practices cannot be said to have had a $I on nonwhites( 8acial
imbalance in one segment of an employers work force does not, without more,
establish a prima facie case of disparate impact with respect to the selection of workers
for the employers other positions, even where workers for the different positions may
have some-what fungible skills( )s long as there are no barriers or practices deterring
-ualified nonwhite from applying for non-cannery positions, if the percentage of selected
applicants who are nonwhite is not significantly less than the percentage of -ualified
applicants who are nonwhite, the employers selection mechanism probably does not
operate with a disparate impact on minorities( 'here this is the case, the percentage of
nonwhite workers found in other positions in the employers labor force is irrelevant to
the -uestion of a PF statistical case of $I(
Isolating the cannery workers as the potential labor force for unskilled non-cannery
positions is at once both too broad and too narrow in its focus(
R3 It is too broad because the vast ma,ority of these cannery workers did not seek ,obs
in unskilled non-cannery positions! there is no showing that many of them would have
done so even if none of the arguably deterring practices eisted( 3hus, the pool of
cannery workers cannot be used as a surrogate for the class of -ualified ,ob applicants
because it contains many people who have non and would not be non-cannery ,ob
applicants( 3he group is too narrow because there are obviously many -ualified persons
in the labor market for non-cannery ,obs who are not cannery workers(
I3 'hether the plaintiffs established causationK
H3 ) plaintiff does not make out a case of $I simply by showing that at the bottom line
there is a racial imbalance in the work force( )s a general matter, plaintiff must
demonstrate that it is the application of a specific or particular employment practice that
has created the disparate impact under attack( %ven if on remand the plaintiffs can show
that nonwhites and underrepresented in the at-issue ,ob in a manner that is acceptable
under the standards, this alone will not suffice to make out a prima face case of $I(
Plaintiffs will also have to demonstrate that the disparity they complain of is the result of
one or more of the employment practices that they are attacking here, specifically
showing that each challenged practice has a significantly $I on employment
opportunities for whites and nonwhites(
I3 If on remand, plaintiff proves PF&, what happens netK
H3 )t the ,ustification stage of a $I case, the dispositive issue is whether a challenged
practice serves, in a significant way, the legitimate employment goals of the employer(
3he touchstone of this in-uiry is a reasoned review of the employers ,ustification for his
use of the challenged practice( ) mere insubstantial ,ustification in this regard will not
suffice, but at the same time, there is no re-uirement that the challenged practice be
essential or indispensible to the employers business for it to pass muster(
I3 'hat is the plaintiff re-uired to establish after the ,ustification stageK
H3 Plaintiff must persuade factfinder that other tests or selection devices, without a
similarly undesirable racial effect, would also serve the employers legitimate hiring
interest( "uch a demonstration proves employment practice was pretet for
36
discrimination( )ny alternative practices which plaintiffs offer up in this respect must be
e&ually effective as the employers chosen hiring procedures in achieving employers
legit interests(
Lannin- I
%mployer re-uired applicants to run .(: mile run within .0 minutes in order to -ualify for
employment with police force( Plaintiff challenged validity of physical fitness re-uirement
as having an unlawful $I on women(
I3 'hat is the appropriate legal standard to apply when evaluating an employers
business ,ustification in an action challenging an employers cutoff score on an
employment screening eam as discriminatory under a $I theory of liabilityK
H3 ) discriminatory cutoff score on an entry level employment eam must be shown to
measure the minimum -ualifications necessary for successful performance of the ,ob in
-uestion in order to survive a $I challenge( ) discriminatory cutoff score is
impermissible unless shown to measure the minimum -ualifications necessary for
successful performance on the ,ob in -uestion(
R3 ) business necessity standard that wholly defers to an employers ,udgment as to
what is desirable in an employee therefore is completely inade-uate in combating covert
discrimination based upon societal pre,udices(
D3 'hen public safety is at stake, a lighter burden is place on employers to ,ustify their
hiring re-uirements(
Lannin- II
%mployer produced evidence that indicated that individuals who fail the est will be much
less likely to successfully eecute critical tasks( "tudy found that individuals who passed
the run test had a success rate on the ,ob standards ranging from CFQ to EFQ( 3he
success rate of the individuals who failed the run test ranged from :Q to 0FQ(
I3 'hether the employer had carried its burden of establishing that its .(: mile run within
.0 minutes measures the minimum aerobic capacity necessary to perform successfully
the ,ob as a "%P3) transit police officerK
H3 Pes( 1ecause we conclude that the employer produced more than sufficient
competent evidence to support the finding that a pre-hire, pre-academy training aerobic
capacity of 70(: m@9min measures the minimum -ualifications necessary for successful
performance as a "%P3) transit police officer, we conclude that the employer has
,ustified the conceded $I on female candidates by showing business necessity(
R3 It would be unreasonable to re-uire applicants to score so highly on the run test that
their predicted rate of success by .FFQ( It is perfectly reasonable, however, to demand
a chance of success that is better than :Q to 0FQ( In sum, "%P3) officers and the
public they serve should be re-uired to engage in high stakes gambling when it comes
to public safety and law enforcement( 3he court found it particularly relevant that nearly
all of the women who trained were able to pass the test after only a moderate amount of
training<it was not unreasonable to epect women to take this necessary step(
EEUAL PROTECTION CLAIMS
Prevents intentional / p$rpose%$l discrimination on the basis of suspect classifications
by indi,id$al -o,ernment actors, generally brought pursuant to & !JK)
Ao "tate shall ( ( ( deny to any person within its ,urisdiction the %-ual Protection of the
37
laws(
!Ct* Amendment
& !JK) Ci,il Action %or t*e Depri,ation o% Ri-*ts
%very person who, under color of any statute ( ( ( sub,ects, or causes to be sub,ected,
any citi4en of the L" or other person within the ,urisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the constitution and laws, shall be liable
to the party in,ured in an action at law, suit in e-uity, or other proceeding for redress(
E8Pro .rame/or0
4$rden on plainti%% to pro,e t*at3
I. 3he employer acted under color of state law and
a. Lnder the color of law is generally interpreted broadly to include any actions
of state or local officially that appear to be under the authority of state law(
i. Federal employers are not covered by J .ED2(
II. 3hat, as a result of the employers conduct, the plaintiff suffered a denial of her
federal statutory rights or privileges
a. J .ED2 plaintiff is denied the rights guaranteed differently from other similarly
situated employees because of race9gender9national origin
i. Prima .acie Case
1. #ember of protected class
2. "ub,ect to )dverse %mployment Practice
3. 6ualified for Gob
4. For the same or similar conduct, he was treated differently from
similarly situated non-minority employees(
a. .acial Classi%ication R Policy that has a suspect
classification on its face is always sub,ect to strict
scrutiny
b. .acial Ne$trality R ) facially neutral policy will be
regarded as violating the %P& only if there is *.+ proof of
a discriminatory impact and *0+ discriminatory purpose
+as*in-ton
i. Invidious purpose may often be inferred from the
totality of the relevant facts:
1. $iscriminatory Impact
a. "ometimes a clear patter,
uneplainable on grounds other
than race, emerges from the effect
of the state action even when the
governing legislation appears
neutral on its face( 1omillion Yic0
+o
i. )bsent a pattern as stark as
that in 1omillion or Yic0
+o, impact alone is not
determinative and the &ourt
must look to other evidence
2. =istorical background
3. @egislative or administrative history
38
4. 3estimony of admin members as to
purpose
ii. ) plaintiff need not prove that the challenged
action rested solely on racially discriminatory
purposes(
Standard
o% Re,ie/
Applica#le to +*at Classi%ications E$ality o%
1o,ernment
Interest
Relations*ip
#et/een
classi%ication and
-oal
Rational
4asis
Scr$tiny
#ost legislative classifications!
%conomic / "ocial classifications
)ge &lassifications
$iscrimination based on disability
'ealth discrimination
$iscrimination based on seual
orientation
8ational
basis
8easonably
8elated
Intermediat
e Scr$tiny
;ender and illegitimacy classifications Important "ubstantially
related
Strict
Scr$tiny
8acial / alienage classifications as
well as selective denials of or burdens
on fundamental rights
&ompelling Aarrowly tailored
+as*in-ton ,5 Da,is
I3 'hether the use of the test invidiously discriminated against Aegroes and hence
denied them due process of law contrary to the commands of the Fifth )mendmentK
H3 Ao( ?ur cases have no embraced the proposition that a law or other official act,
without regard to whether it reflect a racially discriminatory purpose, is unconstitutional
solely because it has a racially disproportionate impact( 3hus, e-ual protection only
permits disparate treatment claims in which a plaintiff can prove the government
employers intent to discriminate, as the &ourt held that disparate impact claims are not
available under the &onstitution(
& !JK! CLAIMS
& !JK!5 E8$al ri-*ts $nder t*e la/
)ll persons within the ,urisdiction of the L" shall have the same right in every "tate to
make and enforce contracts as is en,oyed by white citi4ens( 3he term Hmake and
enforce contractsI includes the making, performance, modification, and termination of
contracts, and the en,oyment of all benefits, privileges, terms, and conditions of the
contractual relationship( 3he rights protected by this section are protected against
impairment by nongovernmental discrimination and impairment under color of "tate law(
I. Scope o% !JK! Protection
a. Pro*i#its intentional discrimination
i. J.ED. can be violated only by p$rpose%$l discrimination 1eneral
4$ildin- Contractors
b. Ma0in- 9 En%orcin- Ls
39
i. %mployment ks, include those that are at will, are included in the
reference to make and enforce ks(
1. Prohibits discrimination in the formation of employment
contracts<e.g, hiring<and discrimination that occurs during
the employment relationship<e.g., harassment, failure to
promote, termination, and retaliation( & !JK!#"
c. Encompasses claims o%3
i. 8acial discrimination
ii. 8everse discrimination
iii. )ncestry discrimination
i!. %thnicity discrimination
d. E7cl$des claims o%3
i. )ge discrimination
ii. "e discrimination
iii. 8eligion
i!. )lienage9Aational ?rigin
1. ;enerally, alienage discrimination can be claimed against state
and local employers, but claims against private employers have
received mied reviews
e. Applies to3
i. Private employers & !JK!c"
ii. "tate / local employers
f. Does not apply to3
i. Federal %mployers
1. 3itle 5II is the e7cl$si,e remedy for ,ob-related racial
discrimination by covered federal government employers and
federal employees covered by 3itle 5II may not sue under J
.ED.(
II. En%orcement o% & !JK! Claims
11
a. Ao administrative ehaustion re-uirements
b. Ao small employer eception
c. Ao cap on punitive and compensatory damages and
d. Ao eclusion of independent contractors
e. "?@
i. J .ED. claims relating to claims occurring outside the O formation
stage<e.g, harassment, failure to promote, termination / retaliation<
four year "?@ & !@GK
ii. J .ED. claims relating to claims occurring at O formation stage must
be determined under the most analogous state "?@
III. .rame/or0
a. Sin-le moti,e claims
i. McDonnell Douglas Framework )pplies
1. Plaintiff presents prima facie case of discrimination
2. %mployer rebuts with evidence of @A$8
3. Plaintiff offers evidence of pretet
b. Mi7ed moti,eK
11 4s a practical atter$ discriinator% clais based on race or ancestr% should be brou"ht under
both 51981 and .itle VII*#hen the .itle VII procedural requireents can be satisfied.
40
Topic Title ?II & !JK!
'hats the standard
for raceK
?b,ective appearance If you can document your
ancestry *but %8 must be
aware of it+
Is ancestry coveredK %%?&- yes
&ourt- no
Pes
#inimum %% si4e .: Aone
Proscribed &lasses 8ace, color, religion, se,
national origin
8ace / alienage *ethnicity+
Forms of
discrimination
Intentional / Impact Intentional
;overnment
%mployers
"tate / Federal "tate only-A?3 federal
%traterritorial %ffect Pes Ao
"cope of &overage %mployment relationships )ll contractual relationships
harassment, une-ual pay,
promote
)dministrative
Preconditions
Pes
"tate w9 deferral agency -2FF
days
"tate w9out deferral agency- .DF
Ao
"tatute of @imitations EF days from receipt of %%?&
letter
Federal personal in,ury limit-
$amage &ap Pes Ao
1eneral 4$ildin- Contractors Assoc5 ,5 Pennsyl,ania
I3 'hether liability may be imposed under J .ED.K
H3 Ao( 'e conclude that J .ED., like the %-ual Protection &lause, can be violated only
by purposeful discrimination(
R3 .ED. was meant to prohibit all racially motivated deprivations of the rights
enumerated in the statute(
SPECI.IC CATE1ORIES O. DISCRIMINATION
INTERSECTIONALITY *p(7C-7E+: 3heory that individuals have multiple identities that
arent addressed by legal doctrines based solely on a single identity or status(
See =e%%eries- discrimination against black females can eist even in the absence of
discrimination against black men or white women( Proper comparison group is black
women v( everyone else( *se X+(
See Lam- recogni4ed sub class of )sian women b9c sub,ect to a set of stereotypes /
assumptions shared neither by )sian men nor by white women
See Ro-ers ,5 Am5 Airlines *p( 7F:+<)irline grooming rule prohibited all employees who
dealt with the public from wearing an all-braided hair-style( ) female )frican )merican
employee challenged the rule under 3itle 5II alleging race and se discrimination( 3he
court analy4ed each claim separately(
E,identiary iss$es<In a race9se plus claim, there may need to be two set of
comparators *e.g., in a race-plus claim, a plaintiff may need to produce evidence that she
41
was treated differently from white males, white females, and black males+(
RACE 9 COLOR DISCRIMINATION
I. Racial discrimination
a. 1enerally2 race discrimination encompasses color discrimination
i. .ED., at a minimum, reaches discrimination against an individual
because he or she is genetically part of an ethnically and
physiognomically distinctive subgrouping of homo sapiens( It is clear
from our holding, however, that a distinctive physiognomy is not
essential to -ualify for J .ED. protection( St5 .rancis
1. 8ace refers to an employees membership in a specific race,
such as white or black(
2. &olor refers to the tone of the employees skin(
b. Standards %or MRace:
1. Title ?II
a. O#Fecti,ely de%ined
i. Lnlawful discrimination must be based on the
plaintiffs ob4ective appearance to others, not his
sub,ective feeling about his own ethnicity(
2. J .ED.
a. "ub,ectively defined *if you can trace ancestry+ but
employer must be aware of it
a. No 4.OE de%ense a,aila#le %or disparate treatment claims
St5 .rancis Colle-e ,5 Al;L*aDraFi
I3 'hether the plaintiff, an )merican citi4en born in Ira-, could bring a race
discrimination claim under J .ED.K
H3 Pes( J.ED., at a minimum, reaches discrimination against an individual because he
or she is genetically part of an ethnically and physiognomically distinctive subgrouping
of homo sapiens( It is clear from our holding, however, that a distinctive physiognomy is
not essential to -ualify for J .ED. protection(
R3 &ongress intended to protect from discrimination identifiably classes of persons who
are sub,ected to intentional discrimination solely because of their ancestry or ethnic
characteristics( "uch discrimination is racial discrimination that &ongress intended J
.ED. to forbid, whether or not it would be classified as racial in terms of modern
scientific theory(
4renn$n ,5 R$t-ers
Plaintiff claimed that he has been discriminated against because he was =ispanic(
Plaintiff asserted that his father was a "ephardic Gew who traced his lineage to those
Gews who were epelled from "pain during the in-uisition(
H: Lnlawful discrimination must be based on the plaintiffs ob,ective appearance to
others, not his sub,ective feeling about his own ethnicity( $iscrimination stems from a
reliance on immaterial outward appearances that stereotype an individual with
imagined, usually undesirable, characteristics thought to be common to members of the
group that share these superficial traits(
4ROTHERS MALONE *A2, p(7:+- self identification
42
3ook .
st
test / identify as white *light skin9hair+( $idnt do well / denied employment(
3ook 0
nd
test / identified as black *this time %8 had )) plan+(
E,idence o% Race3 picture of great grandmother / claim theyd been told she was
black( 1L3 family represented themselves as white for 2 generations
Topic Title ?II & !JK!
'hats the standard
for raceK
?b,ective appearance If you can document your
ancestry *but %8 must be aware
of it+
Is ancestry coveredK %%?&- yes
&ourt- no
Pes
#inimum %% si4e .: Aone
Proscribed &lasses 8ace, color, religion, se, national origin 8ace / alienage *ethnicity+
Forms of
discrimination
Intentional / Impact Intentional
;overnment
%mployers
"tate / Federal "tate only-A?3 federal
%traterritorial %ffect Pes Ao
"cope of &overage %mployment relationships )ll contractual relationships
harassment, une-ual pay,
promote
)dministrative
Preconditions
Pes
"tate w9 deferral agency -2FF days
"tate w9out deferral agency- .DF
Ao
"tatute of @imitations EF days from receipt of %%?& letter Federal personal in,ury limit-
$amage &ap Pes Ao
DISCRIMINATION 4ECAUSE O. SE>
I. +*at is discrimination #eca$se o% se7N
a. TESTS
i. 'hether the evidence shows treatment of a person in a manner,
which but for that persons se would be different(
1. 3he eistence or noneistence of discrimination must be
determined by comparisons of individual characteristics(
ii. ;ender must be irrelevant to employment decisions(
1. 3he key in-uiry is whether gender was a motivating factor in
the employment decision at the moment it was made(
b. Stereotypes
i. %mployment decisions cannot be predicated on mere stereotyped
impressions about the characteristics about males or females(
Man*art
1. )n employer who acts on the basis of a belief that a woman
cannot be aggressive, or that she must not be, has acted on
the basis of gender( Price +ater*o$se
c. Stray;remar0s doctrine
43
i. 8emarks at work do not inevitably prove that gender played a part in
a particular employment decision( 3he plaintiff must show that the
employer actually relied on her gender in making its decision( In
making this showing, stereotyped remarks can certainly be evidence
that gender played a part( Price +ater*o$se
II. Same;Se7 Se7 Discrimination
a. 3he critical issue is whether members of one se are eposed to
disadvantageous terms or conditions of employment to which members of
the other se are not eposed( Oncale
i. =arassing conduct need not be motivated by seual desire to support
an inference of discrimination on the basis of se(
b. Pro,in- Ca$sationHt*at discrimination /as #eca$se o% se7
i. $irect comparative evidence about how the alleged harasser treated
members of both sees in a mied se workplace
ii. "e-specific / derogatory terms
iii. Implicit9eplicit proposals of seual activity
III. 1roomin- Re8$irementsHH3ouchstone is reasonablenessI
a. TEST 3he material issue is not whether the policies are different, but
whether the policy imposed on the plaintiff creates an une&ual burden for
the plaintiffs gender( Personal grooming standards must be viewed in the
contet of the overall policy( =epersen
i. Lnder established e-ual burdens analysis, when an employers
grooming and appearance policy does not unreasonably burden one
gender more than the other, the policy will not violate 3itle 5II(
b. If grooming standard imposed on either se amounts to impermissible
stereotyping *i(e(, seual ob,ectification, seual harassment+, a plaintiff of
either se may challenge that re-uirement under 2rice 1ater$ouse(
i. ;rooming re-uirements do not constitute impermissible se
stereotyping is policy does not re-uire employee to conform to
gender stereotype which would ob,ectively interfere with performance
of ,ob(
IV. A%%irmati,e De%enses A,aila#le
a. 4.OE
i. See =o*nson Controls
b. ?AAP
i. See =o*nson ,5 Santa Clara
City o% L5A5 ,5 Man*art
I3 'hether the employers policy re-uiring women to make larger contributions to its
pension fund discriminated against individual female employees because of their seK
H3 Pes( %mployment decisions cannot be predicated on mere stereotyped impressions
about the characteristics about males or females( %ven a true generali4ation about the
class is an insufficient reason for dis-ualifying an individual to whom the generali4ation
does not apply( )n employment practice that re-uires 0,FFF individuals to contribute
more money into a fund than .F,FFF other employees simply because each of them is a
woman, rather than a man, is in direct conflict with both the language and policy of 3itle
5II( "uch a practice does not pass the simple test of whether the evidence shows
treatment of a person in a manner which but for that persons se would be different(
I3 'hether the eistence or noneistence of discrimination is to be determined by
44
comparison of class characteristics or individual characteristicsK
H3 3he basic policy of the statute re-uires that we focus on fairness to individuals rather
than fairness to classes(
R3 Practices that classify employees in terms of religion, race, or se tend to preserve
traditional assumptions about groups rather than thoughtful scrutiny of individuals(
Price +ater*o$se ,5 Hop0ins
"e stereotype! untrue women have to act a certain way
I3 'hether employer discriminated against employee on basis of seK
H3 Pes( )n employer who acts on the basis of a belief that a woman cannot be
aggressive or that she must not be has acted on the basis of gender( IA$I5I$L)@
8I;=3( P proved %8 invited partners to submit comments! some stemmed from se
stereotypes! impt part of decision on =opkins was submission of assessments! %8 in no
way disclaimed reliance on the se-linked evaluations(
"tereotype in Price 'aterhouse interfered w9 her ability to perform her work(
Cf. =espersen-must be neus b9t stereotype / interference to do work(
So could ER re&uire 5op!ins to dress li!e a ladyK Pes(
Oncale
%mployee forcibly sub,ected to se-related, humiliating actions against him by his male
supervisor because employee failed to conform to male stereotypes(
I3 'hether workplace harassment can violate 3itle 5II because of se when the
harasser and the harassed employee are of the same seK
H3 Pes( Aothing in 3itle 5II necessary bars a claim of discrimination because of se
merely because the plaintiff and the defendant are of the same se( 3he critical issue is
whether members of one se are eposed to disadvantageous terms or conditions of
employment to which members of the other se are not eposed( 'hile implicit9eplicit
proposal of seual activity can also create an inference of discrimination, harassing
conduct need not be motivated by seual desire to support an inference of
discrimination on the basis of se( ) same-se harassment plaintiff can produce
evidence of se specific, derogatory remarks or offer direct comparative evidence about
how the alleged harasser treated members of both sees in a mied se workplace(
=epersen ,5 Harra*:s
I3 'hether makeup re-uirement establishes a prima facie case of $3 and must be
,ustified by a 1F?6K
H3 Ao( ) se-based difference in appearance standards alone, without any further
showing of disparate impact, does not create a prima facie case( )n appearance
standard that imposes different but essentially e&ual burdens on men and women is not
disparate treatment( 3he material issue is not whether the policies are different, but
whether the policy imposed on the plaintiff creates an une-ual burden for the plaintiffs
gender( 'here grooming and appearance polices are reasonable and are imposed in an
evenhanded manner on all employees, slight differences in the appearance
re-uirements for males and females only have a negligible effect on employment
opportunities( Lnder established e-ual burdens analysis, when an employers grooming
and appearance policy does not unreasonably burden one gender more than the other,
the policy will not violate 3itle 5II(
R3 Policy contained se-differentiated re-uirements regarding each employees hair,
45
hands, and face( 'hile those re-uirements differ according to gender, none on its face
places a greater burden on one gender than the other( C.f. .ran0 ,5 United Airlines
*holding that policy re-uiring women to meet the re-uirements of a medium body frame
standard and men of a large body frame standard posed une-ual burden+(
I3 'hether the make-up re-uirement was discriminatory because the policy was based
on a se stereotype about womens appearances under 2rice 1ater$ouseK
H3 Ao( Gespersens claim here materially differs from =opkinss claim in 2rice
1ater$ouse because =arrahs grooming standards do not re-uire Gespersen to conform
to a stereotypical image that would ob,ectively impede her ability to perform her ,ob
re-uirements as a bartended( 3he touchstone of grooming standards is reasonableness(
) makeup re-uirement must be seen in the contet of the overall standards imposed on
employees in a given workplace( Personal grooming standards must be viewed in the
contet of the overall policy( If grooming standard imposed on either se amounts to
impermissible stereotyping, something this record does not establish, a plaintiff of either
se may challenge that re-uirement under Price 'aterhouse( 'e cannot agree that the
employees ob,ection to the makeup re-uirement, without more, can give rise to a claim
of se discrimination under title 5II(
R3 3his is not a case where the dress or appearance re-uirement is intended to be
seually provocative and tending to stereotype women as se ob,ects( Aor is this a case
of seual harassment(
DISCRIMINATION 4ECAUSE O. PRE1NANCY
'$e 2D6"'itle (%% pro$ibits an employer from treating an employee on t$e basis of t$at
employee7s pregnancy, c$ildbirt$, or related medical conditions dissimilarly from ot$er
employees w$o are not so affected. 8nder t$e express terms of t$e 2D6, discrimination
because of pregnancy, c$ildbirt$, or related medical conditions is a form of pro$ibited sex
discrimination.
Pre-nancy Discrimination Act & '(@0"
3he terms Hbecause of seI or Hon the basis of seI include, but are not limited to,
because of or on the basis of pre-nancy2 c*ild#irt*2 or related medical conditions!
and women affected by pregnancy, childbirth, or related medical conditions s*all #e
treated t*e same %or all employment;related p$rposes, including receipt of benefits
under fringe benefit programs, as other persons not so affected but similar in their ability
or inability to work, and nothing in section 0FFFe-0*h+ of this title shall be interpreted to
permit otherwise( 3his subsection shall not re-uire an employer to pay for health
insurance benefits for abortion, ecept where the life of the mother would be
endangered if the fetus were carried to term, or ecept where medical complications
have arisen from an abortion: 2rovided, 3hat nothing herein shall preclude an employer
from providing abortion benefits or otherwise affect bargaining agreements in regard to
abortion(
I. Cases o% DT $nder t*e PDA are -enerally analyDed $nder !cDonnell Douglas
a. PF&
b. @A$8
c. Pretet
II. To pre,ail on a claim $nder t*e PDA2 t*e plainti%% m$st o%%er e,idence t*at
s*o/ t*at i% all t*e pertinent %acts /ere as t*ey are e7cept %or t*e %act o%
pre-nancy2 s*e /o$ld not *a,e #een %ired5
46
a. Met$ods of establis$ing discriminatory intent)
i. Similarly Sit$ated Nonpre-nant +or0er
*evidence pointing to a similarly situated non-pregnant employee
treated differently+
1. &ourts split on whether failure to provide light duty transfer to
pregnant employee is discrimination under P$)
a. ..th &ir(<holding an employer does not violate P$)
when it offers modified duty solely to employees who are
in,ured on the ,ob and not to employees who suffer from
non-occupational ,ury
b. .Fth &ir(<holding that P$) claim could go forward on
evidence that employer offered modified duty to
employees in,ured off the ,ob but not to pregnant
employees
ii. Timin- of the adverse employment action in relation to the disclosure
of pregnant(
iii. Comments made by supervisors9other in workplace
1. 3he probative value of this evidence often turns on whether the
comments are interpreted as reflecting discriminatory animus
by the decision maker or simply stray remarks(
III. #ale as well as female employees are protected under the P$)( See Ne/port
Ne/s
a. 3reating male employees spouses differently for pregnancy health coverage
is se discrimination against men(
IV. Anticipatory action #y employer n(2, p( 7.B
a. ) employer may, under narrow circumstances pro,ect the normal
inconveniences of pregnancy and their secondary effects into the future and
take actions in accordance with and in proportion to those predictions(
i. 1ut an employer cannot take anticipatory action unless it has a -ood
%ait* #asis, supported by s$%%iciently stron- e,idence, that the
normal inconveniences of an employees pregnancy will re-uire
special treatment(
V. Disparate Treatment
a. Plaintiffs may pursue $I claims alleging that the burdens of an employers
facially neutral policy falls more heavily on pregnant women(
i. =owever, the P$) does not re-uire the creation of any special
programs for pregnant women, nor does it mandate any special
treatment(
12
1. 3hus, where policy challenged is universally applicable, a P$)
$I claim will fail because it may force the creation of special
treatment for pregnancy(
VI. Scope o% Mrelated medical conditions:
a. Contraception
i. 3itle 5II re-uires employers to recogni4e the differences between the
sees and provide e-ually comprehensive coverage, even if that
means providing additional benefits to cover women-only epenses(
Eric0son
12 )referential treatent of pre"nant eplo%ees under state la# re"ulatin" aternit% lea!e is not
preepted b% the )-4.
47
1. 3hus, ecluding prescription contraception from an otherwise
comprehensive benefit plan unlawfully discriminates against
women on the basis of pregnancy, childbirth, or related medical
conditions(
b. In%ertility Treatments n( 2, p( 72F
i. Infertility treatments are not included in the P$)s definition of related
medical conditions because infertility is not related to pregnancy and
childbirth<but to prevention of conception, a term not found in the
P$)( 1ecause reproductive capacity is common to both men and
women, we do not read the P$) as introducing a completely new
classification of prohibited discrimination based on reproductive
capacity(
1. C.f. Hall ,5 Nalco holding that employer violated P$) by
discharging woman after undergoing in vitro treatments
because the discharge was motivated by surgical process that
only women undergo(
c. A#ortion n( B, p(020
i. 1ecause the P$) applies to all situations in which women are affected
by pregnancy, childbirth, and related medical conditions, its basic
language covers women who chose to terminate their pregnancies(
3hus, no employer may, for eample, fire or refuse to hire a woman
simply because she has eercised her right to have an abortion(
Ne/port Ne/s S*ip#$ildin- p( 7FD
%mployer amended health insurance plan so that its female employees received
benefits for pregnancy-related conditions to the same etent that they did for other
medical needs( 3he amended plan did not change the coverage offered to the pregnant
wives of male employees(
I3 'hether the plan violated the P$)K
H3 Pes( 3reating male employees spouses differently for pregnancy health coverage is
se discrimination against men( Lnder the proper test the employers plan is unlawful,
because the protection it affords to married male employees is less comprehensive than
the protection it affords to married female employees(
Tro$pe ,5 May Department Stores p( 7.0
'oman fired after ecessive tardiness related to morning sickness the day before she
was to start maternity leave( Plaintiff presented no evidence as to whether the employer
had been less tolerant of her tardiness than it would have been had the cause not been
a medical condition related to pregnancy(
I3 'hether a termination so motivated is discrimination within the meaning of the
pregnancy amendment to 3itle 5IIK
H3 Ao( 3he P$) re-uires the employer to ignore an employees pregnancy, but not her
absence from work, unless the employer overlooks the comparable absences of
nonpregnant employees( %mployers can treat pregnant women as badly as they treat
similarly affected but nonpregnant employees( 1ecause the plaintiff made no effort to
show that if all the pertinent facts were as they are ecept for the fact of her pregnancy,
she would not have been fired, there was no evidence from which a rational trier of fact
could infer that she was a victim of pregnancy discrimination(
48
Cline n( .., p( 70.
3eacher fired for engaging in premarital se(
H3 &ourts generally sustain dismissal as nondiscriminatory as long as men are also
covered by the pre<marital se policy
Eric0son ,5 4artell p( 702
P brought claim under P$) alleging that employers decision not to cover contraception
under benefit plan violated P$)(
I3 'hether the selective eclusion of prescription contraceptives from employers
generally comprehensive prescription plan constitutes discrimination on the basis of
seK
H3 Pes( 3itle 5II re-uires employers to recogni4e the differences between the sees and
provide e-ually comprehensive coverage, even if that means providing additional
benefits to cover women-only epenses( 3he employers prescription drug plan
discriminates against female employees by providing less complete coverage than that
offered to male employees(
R3 )lthough the plan covers almost all drugs and devices used by mend, the eclusion
of prescription contraceptives creates a gaping hole in the coverage offered to female
employees, leaving a fundamental and immediate healthcare need uncovered(
I3 'hether treating contraceptives differently from other prescription drugs is reasonable
because they are voluntary and preventative and do not treat a truly healthcare issueK
H3 )lthough there are distinctions that can be drawn between contraception and other
drugs covered under the plan, none of them is substantive or otherwise ,ustifies the
eclusion of contraceptives from a generally comprehensive healthcare planK
I3 'hether control of ones fertility is not pregnancy, childbirth, or related medical
conditions as those terms are used in the P$)K
H3 Ao( 8egardless of whether the prevention of pregnancy, childbirth, or related medical
conditions, falls within the phrase pregnancy, childbirth, or other related medical
conditions &ongress decisive overruling of 3ilbert evidences an interpretation of 3itle
5II which necessarily precludes the choices the employer made(
I3 'hether the limitation should be permitted to limit the scope of its employee benefit
programs in order to control costsK
H3 Ao( &ost is not a defense of discrimination under 3itle 5II( )lthough the employer
may cut benefits, raise deductibles, or otherwise alter coverage potions to comply with
budgetary constraints, the method by which the employer seeks to curb costs must not
be discriminatory( 3he costs savings the employer reali4es by ecluding contraception is
directly borne by only one se in violation of 3itle 5II( 'hile the employer is permitted to
use non-discriminatory cuts in benefits to control costs, it cannot balance its benefit
books at the epense of its female employees(
I3 'hether the eclusion of all family planning drugs and devices is facially neutralK
H3 Ao( 3he eclusion of prescription contraception, alone or in combination with the
eclusion of infertility drugs, is in no way neutral or e-ual( 3he additional eclusion of
contraception reduces the comprehensiveness of the coverage offered to female
employees while leaving the coverage offered to male employees unchanged<such
ine-uities are discriminatory and violate 3itle 5II(
.AMILY RESPONSI4ILITY DISCRIMINATION
Sex plus discrimination occurs w$ere employer classifies employees on basis of sex plus
anot$er c$aracteristics, describes a case w$ere not all member of a disfavored class are
49
discriminated against.
+*en an employer treats an employee /it* care-i,in- responsi#ilities #ased on
stereotypes a#o$t *o/ t*e employee /ill or s*o$ld #e*a,e2 rat*er t*an on t*at
employee:s indi,id$al interests or per%ormance2 it *as en-a-ed in %amily
responsi#ility discrimination5
P*illips ,5 Martin Marietta p( 727
%mployer refused to accept ,ob applications from women w9preschool aged children but
accepted applications from men with children in the same age range(
=: Policy can only be upheld if employer can demonstrate it is a 1F?6(
C*ad/ic0 ,5 +ellpoint seX > women X subclass
I3 'hether employer unlawfully discriminated against employee on the basis of se by
denying her a promotion because of a se based stereotype that women who are
mothers, particularly of young children, neglect their ,obs in favor of their presumed
childcare responsibilitiesK
H3 Pes( 3he essence of employment discrimination is penali4ing a worker not for
something she did but not for something she simply is( 3he assumption that a woman
will perform her ,ob less well due to her presumed family obligations is a form of se-
stereotyping and adverse ,ob actions on that basis constitute se discrimination( If the
work performance of a woman actually suffers due to childcare responsibilities, an
employer is free to respond accordingly, at least without incurring liability under 3itle 5II(
=owever, an employer is not free to assume that a woman, because she is a woman,
will necessarily be a poor worker because of family responsibilities( 3he essence of 3itle
5II in this contet is that women have the right to prove their mettle in the work arena
without the burden of stereotypes regarding whether they can fulfill their responsibilities(
.MLA
&overs employers with :FX employees
%mployee with at least a year of employment gets .0 weeks of uncompensated
leave during any .0 month period because of *.+ birth of the employees child and
attendant child care! *0+ the placement of a child with the employee for adoption or
foster care! *2+ serious health condition of the employees spouse, son, daughter or
parent re-uiring the employees care! or *7+ a serious health condition that makes
the employee unable to perform the functions of the ,ob(
%mployer can decide when leave begins if employer already etends leave
DISCRIMINATION 4ECAUSE O. SE>UAL ORIENTATION2 1ENDER
E>PRESSION6IDENTITY
Se7 1ender Se7$al Orientation 1ender Identity
3itle 5II law on se
discrimination has
developed based on
the assumption that
8efers to eternal
behavior<including
dress, grooming and
mannerisms<that
) persons enduring
physical, romantic,
emotional, and9or
spiritual attraction to
8efers to a persons
innate, deeply felt
psychological sense
of gender, which
50
se is a binary
concept<that there
are two sees based
on anatomical,
biological
characteristics<
male and female<
and that gender<
masculine or
feminine<follows
from se(
are viewed as being
socially or culturally
linked either to men
or women(
another person(
?ften categori4ed as
gay9straight9bi(
may or may not
correspond to the
persons body or
designated se at
birth(
1ender E7pression Transse7$al Trans-ender Interse7
$escribes the ways
that people,
regardless of their
biological se,
outwardly display
traits, behaviors and
styles of dress and
grooming that are
socially and culturally
assumed to be either
masculine or
feminine(
) person who has
changed, or is the
process of changing,
his or her physical
se to conform his
or her internal sense
of gender identity(
Lmbrella terms to
denote transseuals,
transvestites,
crossdressers, and
anyone else whose
gender identity or
gender epression
varies from the
dimorphic norm(
Individuals born with
a miture of both
male and female
biological
characteristics(
Se7$al Orientation
3he Ainth &ircuit has held that discrimination against employees on the basis of their
seual orientation is not discrimination on the basis of se under 3itle 5II( 3itle 5II has not
been amended to prohibit discrimination on the basis of seual orientation(
13
=owever,
although 3itle 5II does not protect homoseuals from discrimination on the basis of their
seual orientation, it protects homoseuals who are victims of se stereotyping or gender
stereotyping( 3he courts have cautioned that a gender stereotyping claim should be used
to bootstrap protection for seual orientation into 3itle 5II(
Transse7$al
3itle 5II does not protect employees from being discriminated against because they are
transseuals( Ulane ,5 Eastern Airlines(
=owever, 3itle 5II's reference to HseI encompasses both the biological differences
between men and women, and gender discrimination, that is, discrimination based on a
failure to conform to stereotypical gender norms( 3hus, se stereotyping based on a
persons gender non-conforming behavior is impermissible discrimination, irrespective of
the cause of that behavior
Smit* ,5 Salem2 O*io
13 &ongress has considered<but failed to enact<a number of bills that would amend 3itle
5II to prohibit employment discrimination on the basis of affectional or seual orientation(
#any courts have used this fact to conclude that &ongress did not intend se in title 5II to
include seual orientation( %$A), if enacted, would prohibit intentional discrimination on
the basis of seual orientation(
51
#ale seven year employee of fire department! 3ranny diagnosed with ;I$( %mployee
met with employer to discuss his future treatment which would include complete
physical transformation from male to female( %mployer agreed that P would have to
undergo 2 psychological evals, hoped employee would refuse and resign / they could
fire him for insubordination( %mployee brought asserting se discrimination and
retaliation(
I3 'hether employee stated a claim for se stereotypingK
H3 Pes( "e stereotyping based on a persons gender non-conforming behavior is
impermissible discrimination, irrespective of the cause of that behavior! a label, such as
transseual is not fatal to a se discrimination claim where the victim has suffered
discrimination because of his or her gender nonconformity(
R3 1y holding that 3itle 5II protected a woman who failed to conform to social
epectations concerning how a woman should look and behave, the "upreme &ourt
established that 3itle 5II's reference to HseI encompasses both the biological
differences between men and women, and gender discrimination, that is, discrimination
based on a failure to conform to stereotypical gender norms( )fter 2rice 1ater$ouse, an
employer who discriminates against women because, for instance, they do not wear
dresses or makeup, is engaging in se discrimination because the discrimination would
not occur but for the victim's se( It follows that employers who discriminate against men
because they do wear dresses and makeup, or otherwise act femininely, are also
engaging in se discrimination, because the discrimination would not occur but for the
victim's se(
SE>UAL HARASSMENT
"eual harassment is a form of se discrimination( )s such, seual harassment violates
3itle 5II only if and when it violates the terms of & '()a", i.e. the plaintiff must establish
that the employer has engaged in conduct that discriminates as to her terms, conditions,
or privileges of employment because of her se(
)ctionable seual harassment occurs when an employees or applicant is sub,ected to
unwelcome conduct that is motivated by the employees se and that either *a+ results in a
tangible employment action, or *b+ is sufficiently severe or pervasive to create a hostile
work environment for a reasonable person in the employees circumstances(
14

.or se7$al *arassment to #e actiona#le $nder Title ?II2 t*e plainti%% m$st pro,e3
1. #embership in a protected group
2. 3he employee was sub,ect to unwelcome conduct
3. 3hat affects a term and condition of employment
a. =ostile 'ork environment
i. "evere or pervasive
14 4lthou"h ost harassent cases in!ol!e se2ual harassent$ harassent based on race$ reli"ion$
national ori"in$ disabilit%$ and other protected characteristics a% be actionable. 6hether the
harassent is oti!ated b% race$ color$ se2$ reli"ion$ national ori"in$ a"e or disabilit%$ all cases of
harassent are anal%7ed siilarl%.
52
1. ?b,ectively offensive /
2. "ub,ectively offensive
b. 3angible %mployment )ction
i. 'hen a plaintiff prove that a tangible employment action resulted from
a refusal to submit to a supervisors seual demands *i(e( 6P6
harassment+, she established that the employment decision itself
constitutes a change in the terms and conditions of employment that
is actionable under 3itle 5II( Elleret*
4. 1ecause of her gender and
5. ) basis for employer responsibility
a. $irect liability
b. Imputed liability
c. 5icarious liability
i. "upervisor as harasser<strict liability w9 affirmative defense
ii. &o-worker9third party as harasser<negligence standard
E$id pro 8$o Hostile +or0 En,ironment
6P6 harassment occurs whenever a
supervisor made some demand and either
conditioned an employment opportunity on
submission to the demand or threatened the
plaintiff with a retaliatory employment-
related conse-uences for failure to accede
to this demand( 'here the P alleges that
she submitted to this demand under duress
or refused to accede and suffered the
conse-uences, the claim falls under 6P6(
='% arises when seual harassment is a
persistent condition of work<a workplace
permeated with unwelcome intimidation,
ridicule, or insult, based on the plaintiffs
membership in a protected class, that is
sufficiently severe or pervasive to create an
abusive work environment(
3o establish a PF& of a ='% claim, the
plaintiff must show:
.( 3hat the employee belongs to a protected
class
0( 3hat the employee was sub,ected to
welcome seual harassment, including
seual advances, re-uests for seual
favors, or other verbal or physical conduct
of a seual nature
2( 3hat the harassment was based on se
7( 3hat the harassment affected a term,
condition, or privilege of *severe /
pervasive+
:( 3hat the doctrine of respondeat superior
applies(
In -arag$er and Elleret$, the &ourt declared that 6P6 and ='% do not control in seual
53
harassment cases( 3he principal significance of the distinction is to eplain that 3itle 5II
may be violated either by eplicit or constructive alterations in the terms and conditions of
employment and to eplain that in the latter case, the alterations in employment must be
severe and pervasive( 3he terms are relevant when there is a threshold -uestion whether
a plaintiff can prove discrimination in violation of 3itle 5II(
"&?3L" used the terms 6P6 and ='% in Meritor, not in the contet of considering
employer liability, but to illustrate two eamples of seual harassment: *.+ changing
tangible terms or conditions of employment in connection with a seual demand and *0+
changing intangible terms or conditions of employment through severe or pervasive
conduct(
I. T*e cond$ct is #eca$se o% t*e plainti%%:s se7
15
)ctionable seual harassment re-uires that the complained of conduct must be
because of the plaintiffs gender(
a. 3angible %mployment )ction
i. In the tangible employment action contet, proof the causal
connection actually involves two distinct elements:
1. 3he tangible ,ob detriment would not have occurred but for the
employees reaction to the supervisors re-uest for seual
favors and
2. 3hat the re-uest would not have occurred but for the
employees gender(
b. 5ulgar words
i. "ome courts have held that vulgar words and conduct directed
toward both genders are not se based, especially where men and
women alike have engaged in them or where the conduct complained
of is e-ually offensive to me and women(
c. &ommon types of seual harassment
i. "eual advances
1. 'hen a person seually harassers another, i(e(, makes
comments or advances of an erotic or seual nature, courts
infer that the harasser is making advances towards the victim
because the victim is a member of the gender the harasser
prefers
ii. ;ender-based animosity
1. )lthough harassment must be because of gender, it need not
be seual in nature to be actionable(
a. #any nonseual activities can satisfy this element:
epithets, slurs, or negative stereotyping, threatening,
intimidating or hostile acts! and written or graphic
material that denigrates or shows hostility or aversion
towards an individual or group because of gender(
iii. "eually charged workplace
1. ) hostile environment may eists where the cultural norms of
15 8o# easil% a plaintiff can establish the un#elcoe conduct #as because of "ender #ill depend
upon #hether the situation in!ol!es se2ual ad!ances$ a se2uall% char"ed #or+place$ se2ual
fa!oritis$ post3roance harassent$ "ender3based aniosit%$ "ender stereot%pin"$ bise2ual
harassent$ retaliation for re9ectin" se2ual ad!ances$ or harassent because of pre"nanc%$
childbirth$ or related edical conditions.
54
the workplace are seually charged( ) seually charged
workplace occurs where management condones seually
offensive language or visual displays that are not targeted at
specific female workers and indeed may have eisted for years
prior the employees arrival at the workplace(
i!. "ame se harassment
1. ) hostile environment seual harassment claim may lie
regardless of whether the harasser and victim are of the same
or opposite gender(
a. 3he critical issue is whether members of one se are
eposed to disadvantageous terms or conditions of
employment to which members of the other se are not
eposed( See Oncale for evidentiary routes
d. %-ual opportunity91iseual harasser
i. 3heoretically, an employer could defeat the because of se element
by showing that the harasser treated members of both genders
e-ually as his or her seual prey, or was otherwise hostile to both( In
these cases, the conduct is not because of se, the employer would
argue, because men and women are accorded like treatment(
1. Plaintiffs may satisfy the because of se element by proof that
the offensive conduct was disproportionally directed at plaintiff
or members of his or gender, or motivated by general hostility
towards his or her gender(
II. Un/elcome
a. 3he plaintiff must prove that the conduct is unwelcome in the sense that the
plaintiff did not solicit or incite it, and in the sense that the employee
regarded the conduct as undesirable or offensive(
i. 3he correct in-uiry is whether the plaintiff by her conduct indicated
that the alleged seual advances were unwelcome, not whether her
actual participation in seual intercourse was voluntary( Meritor
b. Lnwelcomeness is usually eamined by looking at the employees
participation in or response to the conduct(
i. &ourts have considered various factors in evaluating whether conduct
is unwelcome:
1. Plaintiffs wearing of provocative dress
2. )pparent friendliness with the harasser
3. Failure to report harassment
4. Participation in seual horseplay
5. Prior consent to seual intimacy *not dispositive+
III. Se,ere or Per,asi,e
)ctionable conduct must be sufficiently severe or pervasive to alter the conditions
of the victims employment by creating an abusive or unlawfully hostile working
environment(
a. 3he work environment must be one that a reasonable person would find
hostile, looking at all the circumstances(
b. 3he plaintiff must have sub"ectively perceived the environment as hostile
i. "o long as the environment would reasonably be perceived
*ob,ectively offensive+ and is perceived *sub,ectively offensive+, as
hostile or abusive, there is not need for it to be psychologically
in,urious( Harris
55
c. $etermining whether the challenged conduct was serve or pervasive is
based on an assessment of the totality of the circumstances from the
perspective of a reasonable person in the plaintiffs position, with focus on:
i. 3he level of offensiveness of the unwelcomed speech or conduct
ii. 3he fre-uency of occurrence of such conduct or speech
iii. 3he length of time over which the alleged harassment occurred and
i!. 3he contet in which the challenged conduct occurred( Harris
!. 3he in-uiry must consider the social contet in which the particular
behavior occurs and is eperienced by its target( Oncale
d. Instances of conduct that is not severe or pervasive
i. Isolated )cts
1. "imple teasing, offhand comments, and isolated incidents
*unless etremely serious+ will not amount to discriminatory
changes in the terms or conditions of employment( Isolated
incidents must be analyses in light of the totality of the
circumstances, rather than as individual instances of
unwelcome conduct, in determining the ob,ective
pervasiveness of unwelcome conduct( .ara-*er
a. See 4reeden finding no actionable harassment, stating
that the brief dialogue between the two men and
subse-uent chuckling are at worst an isolated incident
that cannot remotely be considered etremely serious
IV. Employer Lia#ility
a. S$per,isor Se7$al Harassment
) master is not sub,ect to liability for the torts of his servants acting outside
the scope of their employment unless: ( ( ( *d+ ( ( ( he was aided in
accomplishing the tort by the eistence of the agency relation( If the
harasser is a supervisor with immediate or successively higher authority
over the employee, based on the aided by agency relation principle of &
A!JA"d", the employer is presumptively liable(
16
3he presumption is
rebuttable if there has been no tangible employment action(
i. S$per,isor
1. ;enerally, the courts address the issue of whether the
harasser was the employees supervisor by eamining the
actual authority of the purported supervisor over the victim( In
determining how much authority is enough to -ualify an
individual as a supervisor, most courts look at the type of
authority wielded by the harasser, not the nomenclature of the
,ob(
a. See Par0ins ,5 Ci,il Constr$ctors *holding that
16 .he presupti!e liabilit% is based on the aided3b%3a"enc%3relation principle ebodied in 5
219&d': In ipleentin" .itle VII$ it a+es sense to hold an eplo%er !icariousl% liable of soe
tortious conduct of a super!isor ad possible b% abuse of his super!isor% authorit%. . . . .he a"enc%
relationship affords contact #ith an eplo%ee sub9ected to a super!isor,s se2ual harassent$ and the
!icti a% #ell be reluctant to accept the ris+s of blo#in" the #histle on a superior. 6hen a person
#ith super!isor% authorit% discriinates in the ters and conditions of subordinates, eplo%ent$
his actions necessaril% dra# upon his superior position o!er the people #ho report to hi$ or those
under the$ #hereas an eplo%ee "enerall% cannot chec+ a super!isor,s abusi!e conduct the sae
#a% she i"ht deal #ith abuse fro a co3#or+er.
56
supervisory authority consists of the power to hire, fire,
demote, promote, transfer, or discipline an employee(+
ii. Tan-i#le Employment Action
1. ) tangible employment action constitutes a significant change
in employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits( 1y contrast,
where only fairly trivial work changes occur, courts have not
found a tangible employment action( &ourts have also declined
to allow voluntary acts of the employee to serve as the basis
for a tangible employment action(
a. ) tangible employment action in most cases inflicts
direct economic harm(
b. )s a general proposition, only a supervisor, or other
person acting with the authority of the company can
cause this sort of in,ury(
2. )ctions &onstituting 3angible %mployment )ctions
a. &oerced submission to seual advances
i. See Holly ,5 Cal5 Tec*, 22E F(2d ..:D *Eth &ir(
0FF2+ *holding that a tangible employment action
occurs when a supervisor etorts seual favors
from an employee by conditioning her continued
employment on her participation in unwelcome
seual acts+
b. 'ithholding pay
c. $enial of promotion
d. $emotion
e. 3ransfers
f. $enial of training
3. )ctions not &onstituting 3angible %mployment )ction
a. %tra work assignment and short term or temp( changes
b. 3rivial work changes
c. 3ransfers
i. See St$ler ,5 Ill5 Dep:t o% Corrections, 0B2 F(2d
BED *Cth &ir( 0FF.+ *holding that a lateral transfer
to another department, without any loss of
benefits, was not an averse employment action+(
d. Lnfulfilled threats
4. Employer Lia#ility
a. ) tangible employment action taken by the supervisor
becomes for 3itle 5II purposes the act of the employer(
b. 'here a tangible employment action is present, liability
is absolute(
iii. No Tan-i#le Employment Action
In cases of employer vicarious liability for supervisory harassment
that do not involve a tangible employment action, the employer will
have an opportunity to raise an affirmative defense(
1. Reasona#le Care to Pre,ent and Correct Se7$al
Harassment
a. 3o establish the first prong of the defense, the employer
57
must prove that it took reasonable care to prevent and
correct promptly any seual harassing behavior
i. Pre,ention Pron-
1. 3his generally re-uires that the employer
have and disseminate some formal policy
against harassment, with a reasonably
complaint procedure(
a. 3he complaint procedure should
provide for bypassing the offending
supervisor in instances where the
supervisor himself is the alleged
harasser
b. 3he mechanism for reporting
harassment must be available to
employees without undue risk or
epense(
EEOC ,5 ?9= .oods 3est
3he reasonableness of a complaint mechanism depends on the employment
circumstances including known vulnerabilities and capabilities of the class of employees
in -uestion(
ii. Correction Pron-
1. )n employer can generally satisfy this
component with evidence that its remedial
response was reasonably calculated to
end harassment(
a. ?nce an employer receives a
complaint of a hostile work
environment created by a
supervisor, it must take affirmative
steps to investigate and, if
necessary, take corrective action in
order to avoid liability(
2. )n employers failure to abide by its own
policies is evidence tending to show that
the employers response was inade-uate(
3. 3he measure of ade-uate timeliness in an
employers response to a harassment
complaint can vary depending upon the
need for etensive investigation or the
compleity of the employers organi4ation(
2. Unreasona#le .ail$re to Ta0e Ad,anta-e o% Remedial
Meas$res
a. 3o establish the second prong of the defense, the
employer must prove that the plaintiff unreasonably
failed to take advantage of any preventative or
corrective opportunities provided by the employer or to
avoid harm otherwise(
i. )n employer can satisfy this component by
demonstrating that the employee failed to use
58
any complaint procedure provided by the
employer(
b. Co;+or0er Se7$al Harassment
i. In order to prevail under 3itle 5II for a claim of co-worker seual
harassment, the plaintiff must prove that the employer was negligent
in order to sub,ect the employer to liability for the acts of its harassing
employees( 3his re-uires the plaintiff to establish that:
1. 3he employer knew or should have known of the harassing
conduct! and
2. 3he employer failed to take prompt and appropriate remedial
action(
ii. 'here the plaintiff can prove both of these elements, the employer
will be held liable and cannot assert an affirmative defense(
iii. 3his negligence standard is also applied in cases of third-party seual
harassment
c. Direct Lia#ility
i. )n employer may be directly liable for harassment where it intended
the conduct or the conse-uences(
d. Imp$ted Lia#ilityHHi-*;ran0in- *arasser as a pro7y or alter e-o %or
t*e employer
i. )n employer can be found directly liable for a supervisor's actionable
seual harassment when the supervisor engaged in the
harassment with the purpose of serving the employer or when the
supervisor's high rank makes him the employer's alter ego(
ii. )n alter ego instruction is appropriate in those situations where the
agent's high rank in the company makes him or her the employer's
alter ego S rare
1. )n official must be high enough in the management hierarchy
that his actions Uspeak for the employer before he may be
considered the employer's alter ego( W W W ?nly individuals with
eceptional authority and control within an organi4ation can
meet that standard(
Constr$cti,e Disc*ar-e
I. ) constructive discharge occurs when a reasonable person in the employees
position would view his or her working conditions as intolerable and would feel that
he or she had no other choice but to -uit(
a. 3o prove a constructive discharge, the employee must show that the
employer made the working conditions so difficult or unpleasant that a
reasonable person in the employee's position would have felt compelled to
resign(
i. )n employee's sub,ective opinion is not sufficient to support
a constructive discharge claim(
b. A%%irmati,e De%ense
i. )n employer may defend against such a claim by showing both:
1. that it had installed a readily accessible and effective policy for
reporting and resolving complaints of seual harassment, and
2. that the plaintiff unreasonably failed to avail herself of that
employer-provided preventative or remedial apparatus(
ii. 3his affirmative defense will not be available to the employer,
however, if the plaintiff -uits in reasonable response to an employer;
59
sanctioned ad,erse action officially changing her employment status
or situation, for eample, a humiliating demotion, etreme cut in pay,
or transfer to a position in which she would face unbearable working
conditions( S$ders
Nic*ols ,5 .ran0 p( :F0
$eaf-mute plaintiff employed as mail sorter, her supervisor was the only supervisor who
could use sign language( =e repeatedly demanded that she perform oral se on him(
1ecause the plaintiff feared she would lose her ,ob or ,ob benefits if she refused the
demands, she repeatedly but unwillingly performed oral se on him over a period of si
months(
H3 6uid pro -uo seual harassment occurs whenever an individual eplicitly or implicitly
conditions a ,ob, a ,ob benefit, or the absence of a ,ob detriment on an employees
acceptance of seual conduct(
Meritor ,5 ?inson
%mployee alleged that she had been pressured into having seual relations on
numerous occasions with her supervisor( "he said she agreed to do so out of fear of
losing her ,ob( "he never reported the harassment to her supervisors because she
feared him( 3he harasser denied the accusations( 3he employer, citing the absence of
any complaint by the employee, claimed ignorance of any improper conduct by the
harasser(
I3 'hether actionable seual harassment re-uires a tangible ,ob lossK
H3 Ao( ) plaintiff may establish a violation of a 3itle 5II by proving that discrimination
based on se has created a hostile or abusive work environment( For seual
harassment to be actionable, it must be sufficiently severe or pervasive to alter the
conditions of the victims employment and create an abusive working environment(
I3 'hether no actionable harassment occurs if the relationship was voluntaryK
H3 Ao( 3he fact that se-related conduct was voluntary, in the sense that the
complainant was not forced to participate against her will, is not a defense to a seual
harassment suit brought under 3itle 5II( 3he correct in-uiry is whether respondent by
her conduct indicated that the alleged seual advances were unwelcome, not whether
her actual participation in seual intercourse was voluntary(
Harris ,5 .or0li%t p( :FD
$uring plaintiffs time at workplace, supervisor insulted her because of her gender and
often made her the target of unwanted seual innuendos( $& granted "G for employer
finding that the comments were not so severe as to be epected to seriously affect the
plaintiffs psychological well-being(
I3 'hether conduct, to be actionable as abusive work environment harassment, must
seriously affect an employees psychological well-being or lead the plaintiff to suffer
in,uryK
H3 Ao( 'hen the workplace is permeated with discriminatory intimidation, ridicule, /
insult,I that is sufficiently severe or pervasive to alter the conditions of the victims
employment and create an abusive working environment, 3itle 5II is violated( &onduct
that is not severe or pervasive enough to create an ob,ectively hostile or abusive work
environment<an environment that a reasonable person would find hostile or abusive<
is beyond 3itle 5IIs purview( @ikewise, if the victim does not sub,ectively perceive the
60
environment to be abusive, the conduct has not actually altered the conditions of the
victims employment, and there is no 3itle 5II violation( 1ut 3itle 5II comes into play
before harassing conduct leads to a nervous breakdown( &ertainly 3itle 5II bars conduct
that would seriously affect a reasonable persons psychological well being, but the
statute is not limited to such conduct( "o long as the environment would reasonably be
perceived and is perceived, as hostile or abusive, there is not need for it to be
psychologically in,urious( 'hether an environment is hostile or abusive can be
determined only by looking at all the circumstances( 3hese made include the fre-uency
of the discriminatory conduct! its severity! whether it is physically threatening or
humiliating! and whether it unreasonably interferes with an employees work
performance(
4$rlin-ton ,5 Elleret* p( :2E
Involved bosses unfulfilled threats to deny the plaintiff a promotion and maker her life
very hard unless she acceded to his demands for se( $& granted "G for employer
holding that although the actions may have been severe or pervasive, the employer
lacked actual or constructive knowledge of the harassment because the plaintiff failed to
complain( "&?3L" reversed(
I3 'hether a claim of 6P6 seual harassment may be stated under 3itle 5II where the
plaintiff has neither submitted to the seual advances of the alleged harasser not
suffered any tangible effects on the compensation, terms, conditions, or privileges of
employment as a conse-uence of a refusal to submit to those advancesK
H3 Ao( 'hen a plaintiff proves that a tangible employment action resulted form a refusal
to submit to a supervisors seual demands, he or she establishes that the employment
decision itself constitutes a change in the terms and conditions of employment that is
actionable under 3itle 5II( For any seual harassment preceding the employment
decision to be actionable, however, the conduct must be severe or pervasive( 1ecause
the plaintiffs claim involves only unfulfilled threats, it should be categori4ed as a hostile
work environment claim, which re-uires a showing of severe or pervasive conduct(
I3 'hether an employer has vicarious liability when a supervisor creates a hostile work
environment by making eplicit threats to alter a subordinates terms or conditions of
employment based on se but does not fulfill the threatK
H3 Pes(
.ara-*er ,5 City o% 4oca Raton p( ::C
Plaintiff worked as lifeguard and was sub,ect to repeated harassment by supervisors(
3he employer had a seual harassment policy but completely failed to disseminate it
amongst its employees(
I3 'hether the conduct was actionable harassmentK
H3 Ao( 3he degree of hostility in the work environment rose to the actionable level and
was attributable to the supervisors(
I3 'hether employer could raise affirmative defenseK
H3 Ao( 3he aided-by-agency relation principle embodied in J 0.E*0+*d+ of the
8estatement provides an appropriate starting point for determining liability for
supervisory seual harassment )n employer is sub,ect to vicarious liability to a
victimi4ed employee for an actionable hostile environment created by a supervisor with
immediate *or successively higher+ authority over the employee( 'hen no tangible
employment action is taken, a defending employer may raise an affirmative defense to
61
liability or damages, sub,ect to proof by a preponderance of the evidence( 3he defense
comprises two necessarily elements: *.+ that the employer eercised reasonable care to
prevent and correct promptly any seually harassing behavior, and *0+ that the plaintiff
employee unreasonably failed to take advantage of any preventative or corrective
opportunities provided by the employer or to avoid harm otherwise( 'hile proof that an
employer had promulgated an antiharassment policy with complaint procedure is not
necessary in every instance as a matter of law, the need for a stated policy suitable to
the employment circumstances may appropriately be addressed in any case when
litigating the first element of the defense( )nd while proof that an employee failed to
fulfill the corresponding obligation of reasonable care to avoid harm is not limited to
showing an unreasonable failure to use any complaint procedure provided by the
employer, a demonstration of such failure will normally suffice to satisfy the employers
burden under the second element of the defense( Ao affirmative defense is available,
however, when the supervisors harassment culminates in a tangible employment
action, such as discharge, demotion, or undesirable reassignment( Lnlike the employer
of a small workforce, who might epect that sufficient care to prevent seual harassment
could be eercised informally, those responsible for the city operations could not
reasonably have thought that precautions against hostile environment in any one of
many departments could be effective without communicating some formal policy against
harassment, with a sensible complaint procedure( Lnder such circumstances, we hold
as a matter of law that the &ity could not be found to have eercised reasonable care to
prevent the supervisors harassing conduct(
Pennsyl,ania State Police ,5 S$ders p( :C7
Female employee who has not filed a complaint under the employers anti-harassment
policy alleged that acts of supervisory harassment forced her to resign from her position(
1ecause the employer could establish both elements of the defense, the critical issue
was whether her allegation that she had been constructively discharged satisfied the
re-uirement of a tangible employment action( 3he &ourt ruled that a constructive
discharge, even where it could be established, did not constitute a tangible employment
action because it was not an affirmative action by the employer( Lnless the plaintiff can
prove that the harassment had produced some other employment action<e.g.,
demotion, cut in pay<that ultimately forced her to resign, the plaintiff can not establish
the eistence of a tangible employment action and the employer can assert the
affirmative defense(
I3 'hat are the proof burdens parties bear when a seual harassment9constructive
discharge claim of that character is asserted under 3itle 5IIK
H3 3o establish ='%, plaintiff must show harassing behavior sufficiently severe or
pervasive to alter the conditions of their employment( 3o establish constructive
discharge, the plaintiff must show that the abusive working environment became so
intolerable that her resignation -ualified as a fitting response( )n employer may defend
against such a claim by showing both: *.+ that it had installed a readily accessible and
effective policy for reporting and resolving complaints of seual harassment, and *0+ that
the plaintiff unreasonably failed to avail herself of that employer-provided preventative or
remedial apparatus( 3his affirmative defense will not be available to the employer,
however, if the plaintiff -uits in reasonable response to an employer-sanctioned adverse
action officially changing her employment status or situation, for eample, a humiliating
demotion, etreme cut in pay, or transfer to a position in which she would face
unbearable working conditions(
62
I3 'hether a constructive discharge brought about by supervisor harassment ranks as a
tangible employment action and therefore precludes assertion of the affirmative defense
articulated in -arag$er and Elleret$K
=: )n employer does not have recourse to the %llereth9Faragher affirmative defense
when a supervisors official act precipitates the constructive discharge! absent such a
tangible employment action, however, the defense is available to the employer whose
supervisors are charged with seual harassment(
HARASSMENT 4ECAUSE O. RACE
) plaintiff can state a claim under 3itle 5II for harassment based on race, religion, or
national origin(
3he appropriate standard to be applied in hostile environment racial harassment case is
that of a reasonable blac! person( Harris
Harris ,5 IP
1lack employee forced to fun a gauntlet of racial abuse from the time of his arrival at the
mill( 3he supervisors racist views included the use of epithets like la4y nigger and black
son-of-a-bitch(:
I3 'hat standard is applied by a fact finder to assess whether particular conduct or
speech is unwelcome and whether that harassment is sufficiently severe and pervasive
to violate antidiscrimination lawK
H3 )ppropriate standard to be applied in hostile environment racial harassment case is
that of a Hreasonable black person(I
R3 Instances of racial violence or threatened violence which might appear to white
observers as mere HpranksI are, to black observers, evidence of threatening, pervasive
attitudes closely associated with racial ,okes, comments or nonviolent conduct which
white observers are also more likely to dismiss as non-threatening isolated incidents(
I3 'hether the conduct complained of rose to the level of actionable ='%K
H3 Pes( 3he -uality and -uantity of the racial speech and conduct described above and
eperienced by Plaintiff =arris rises to the level of racial harassment by creating an
intimidating, hostile and offensive work environment so severe and pervasive that it
substantially altered =arris's working conditions( 3he &ourt also finds that there is
abundant evidence that $efendant's agents, supervisors, and foremen had actual
knowledge of this racial harassment in most circumstances, and in the remaining
instances would have had knowledge of the harassment being suffered by =arris had
$efendant eercised reasonable care( 3he &ourt holds that Plaintiff =arris satisfied his
burden of establishing a prima facie case of hostile environment racial harassment(
SE> 4ASED +A1E DISCRIMINATION
E8$al Pay Act & A(@d"
!" Ao employer having employees sub,ect to any provisions of this section shall
discriminate, within any establishment in which such employees are employed, between
employees on the basis of se by paying wages to employees in such establishment at
a rate less than the rate at which he pays wages to employees of the opposite se in
such establishment for e-ual work on ,obs the performance of which re-uires e-ual skill,
effort, and responsibility, and which are performed under similar working conditions,
ecept where such payment is made pursuant to *i+ a seniority system! *ii+ a merit
63
system! *iii+ a system which measures earnings by -uantity or -uality of production! or
*iv+ a differential based on any other factor other than se: 2rovided, 3hat an employer
who is paying a wage rate differential in violation of this subsection shall not, in order to
comply with the provisions of this subsection, reduce the wage rate of any employee(
I. Prima .acie Case
In order to prevail under the %P), the burden is on the P to establish that:
a. T*e employer pays $ne8$al /a-es to t*e opposite se7
17
i. ) PF& re-uires only proof of an une-ual rate of pay, not une-ual total
compensation
ii. #pposite Sex Comparators n(7 p( B.2
1. "electing an appropriate opposite se comparator is essential
to plaintiffs PF&
a. "ome courts have held that an individual plaintiff can
meet this element of a PF& with evidence that a single
opposite se comparator earns more than her
b. ?ther courts have held that the P does no meet her PF&
burden if there is evidence that she is paid the same or
more than some male counterparts
c. If there are no appropriate ?"& currently employed in
the same establishment, a P cannot create a
hypothetical or composite ?"&
i. 1ut a number of courts have held that a P can
use evidence that an opposite se predecessor r
successor in the at-issue ,ob received higher
rates
1. ?ne court permitted the Ps case to go
forward with a comparator that was a
combination of the three particular,
identifiable persons who succeeded her
b. .or /or0 re8$irin- e8$al s0ill2 e%%ort2 and responsi#ility
i. 3o establish a PF& under %P), a P need only establish that the two
,obs are substantially e$ual n(7 p( B.0
1. In determining whether tow ,obs are substantially e-ual, courts
will generally make an overall comparison of the work rather
than eamining the individual segments
a. &ourts consider the duties actually performed in each
,ob, not the tile or ,ob description used by the employer
i. &onstrued narrowly
c. Pre%ormed $nder similar /or0in- conditions
i. &ourt does not consider time of day9shift when determining whether
performed under similar working conditions
ii. 'orking conditions has two subfactors<surroundings / ha4ards
Cornin- 1lass
1. S$rro$ndin-s<elements, i(e( toic chemicals or fumes,
regularly encountered by a worker, their intensity / fre-uency
2. HaDards<physical ha4ards regularly encountered, their
fre-uency / severity of in,ury they can cause
17 )roof of discriinator% intent is not required to establish a );< under the =)4.
64
d. In t*e same esta#lis*ment
i. Lnder %P), courts have construed this broadly( 3hus, where the
employer maintains centrali4ed control and administration of separate
,ob sites, it will generally be deemed a single establishment under
%P)
1. Contra Lnless the P presents evidence of unusual
circumstances, the %%?& presumes the term establishments
means a distinct physical place of business rather than an
entire business or enterprise which may include several
separate places of business
II. T*e .o$r A%%irmati,e De%enses
3he burden then shifts to the employer to show that the differential is ,ustified under
one of the )cts four eceptions:
a. Seniority System
b. Merit System
i. ?ne court has defined a merit system that meets the %P) affirmative
defense as an organi4ed and structured procedure whereby
employees are evaluated systematically according to predetermined
criteria(
c. System /*ic* meas$res earnin- #y 8$antity or 8$ality o% prod$ction
d. A di%%erential #ased on any %actor ot*er t*an se7
i. &atch-all Provision
1. Plurality of the court has indicated that this provision means
any factor<whether reasonable or unreasonable
ii. "alary policies as factor other than se n(D p( B.:
1. Prior salary and market demands
a. 3he courts are in conflict regarding whether an employer
must have an acceptable business reason to set an
employees starting pay based on prior salary
i. See Lo$#a ,5 Allstate *wages set in part on prior
salaries+
1. %mployer cannot use a factor which
causes a wage differential between sees
absent an acceptable business reason(
&onversely, factor used to effectuate some
business policy isnt prohibited because
wage differential results
2. Fact that woman has less bargaining
power to demand higher salary does not
constitute valid factor other than se
a. C.f. statute only asks whether
employer has reason other than se
<doesnt re-uire a good reason
4ennett Amendment
It shall not be an unlawful employment practice under this subchapter for any employer
to differentiate upon the basis of se in determining the amount of the wages or
compensation paid or to be paid to employees of such employer if such differentiation is
aut$ori9ed by the provisions of section 0FB*d+ of 3itle 0E(
65
"ince the payment of wages is a term or condition of employment, and se-based wage
differential that would violate the %P) also would violate 3itle 5II( Furthermore, since 3itle
5II, unlike the %P), does not contain an e-ual work standard, it has a potentially broader
application to se-based wage claims( If a plaintiff could prevail on %P) claim, 1ennett
)mendment does not apply and the issue becomes whether the plaintiff proved
discriminatory intent(
3itle 5II wage discrimination claims are analy4ed under the McDonnell Douglas framework
I. Prima .acie Case
a. #ember of protected class
b. 6ualified for ,ob in -uestion
c. "he was paid less than men for the same work
i. ) 3itle 5II plaintiff is not re-uired to satisfy the %P)s standard of
e-ual or substantially e-ual work in order to proceed with a claim of
se-based wage discrimination under 3itle 5II<3he plaintiff is only
re-uired to show proof of similar work for une-ual pay for PF& of
wage discrimination(
1. Proo% o% Similar +or0 Conditions n(. p( B0.
a. See "prague v( 3horn *implying that plaintiffs burden
under 3itle 5II is lighter than under %P)+
i. If the pay disparity between female and male
employees is consistent with the different levels
of importance, value, and depth of responsibility
between the respective departments, the plaintiff
fails to make out a claim under 3itle 5II or %P)
d. 3he employers adverse employment decision occurred under circumstances
that raise an inference of discrimination
i. In contrast to an %P) claim, a title 5II $3 plaintiff must also produce
evidence of a discriminatory animus or intent in order to satisfy her
prima facie case(
II. T*e #$rden o% prod$ction t*en s*i%ts to t*e employer to artic$late an LNDR or
raise one o% t*e %o$r a%%irmati,e de%ensesH4ennett Amendment incorporates
the four affirmative defenses o% t*e EPA
a. 4$rden o% Proo%
i. Lnder the %P), the burden is on the employer to establish that the
pay differential was premised on a factor other than se( Lnder 3itle
5II, the P must prove that the employer had discriminatory intent(
ii. If the evidence is in the e-uipoise on the issue of whether a salary
differential is based on a factor other than se, the plaintiff is entitled
to ,udgment on %P) claim( =owever, the employer prevails on the 3itle
5II claim( Lnlike 3itle 5II, the risk of nonpersuasion always remains
with the
III. T*e plainti%% maintains t*at $ltimate #$rden o% pro,in- t*at t*e employer:s
artic$lated reason /as prete7t$al5
Proced$ral Di%%erences 4et/een Title ?II and EPA
Title ?II EPA
&laimants must follow filing and
administrative ehaustion re-uirements
0 year "?@ *2 for willful violations+
66
Filing with %%?&9state deferral agency
within .DF90FF days
1ack pay awards
1ack pay plus damages sub,ect to caps @i-uidated damages for willful violations
Cornin- 1lass ,5 4rennan EPA Case p( BF:
&1) creates shift differential<but does not ad,ust high base pay( 'omen subse-uently
permitted to work at night( &1) sets a sing base wage for night and day but red circles
incumbents higher night wages(
I3 'hether the employers practice of paying a higher base wage to male night shift
inspectors than it paid to female inspectors performing the same tasks on the day shift
violated the %P)K
H3 Pes( 1y proving that after the effective date of the %P), the employer paid female day
inspectors less than male night inspectors for e-ual work, the plaintiff implicitly
demonstrated that the wages of female day inspectors were unlawfully depressed and
that the fair wage for inspection work was the base wage paid to male inspectors on the
night shift( 3he companys continued discrimination in base wages between night and
day workers, though phased in terms of a neutral factor other than se, nevertheless
operated to perpetuate the effects of the companys prior illegal practice of paying
women les than men for e-ual work(
I3 $id the employer cure its violation by permitting women to work as night shift
inspectorsK
H3 Ao( 3o remedy violations of the act, the lower wage rate must be increased to the
level of the higher( )n employer cannot cure its violation ecept by e-uali4ing the base
wages of female day inspectors with the higher rates paid the night inspectors(
R3 3he ob,ective of the %P) is not to drag down men workers to the wage levels of
women, but to raise women to the levels en,oyed by men in cases where discrimination
is still practiced( 3he %P) is broadly remedial and it should be construed and applied so
as to fulfill the underlying purposes which &ongress sought to achieve(
Cnty5 o% +a5 ,5 1$nter Title ?II64ennett Amendment case p( B.D
Plaintiff alleged that they were paid une-ual wages for work substantially e-ual to that
performed by male guards and in the alternative that part of the pay differential was
attributable to intentional se discrimination because the county set the pay scale for
female guards, but not for male guards at a lower rate than that warranted by its own
survey of outside markets and the worth of ,obs(
I3 'hether such a claim is precluded by the last sentence of J CF2*h+ of 3itle 5IIK
H3 Ao( 3he 1ennett )mendment does not restrict 3itle 5II's prohibition of se-based
wage discrimination to claims for e-ual pay for He-ual work(I 8ather, claims for se-
based wage discrimination can also be brought under 3itle 5II even though no member
of the opposite se holds an e-ual but higher paying ,ob, provided that the challenged
wage rate is not eempted under the %-ual Pay )ct's affirmative defenses as to wage
differentials attributable to seniority, merit, -uantity or -uality of production, or any other
factor other than se(
Compara#le +ort*
&omparable worth cases raise the -uestion of whether 3itle 5II mandates e-ual pay when
,obs are Hune-ualI under the %-ual Pay )ct standard but have a comparable value to the
employer( )fter 1$nt*er and A.SCME, it became clear that courts would not be
hospitable to comparable worth theories used in 3itle 5II cases for the purposes of
67
mandating pay e-uity across se-segregated ,obs(
A.SCME p( B07
Lnion sued alleging ignoring study that certain ,obs are of comparable worth to ,obs with
higher salaries is $3
H3 8eliance on labor market rates does not support claim of intentional discrimination(
"tate's decision to participate in market system, thereby basing compensation on
competitive market rather than on a theory of comparable worth, did not establish a
discriminatory motive so as to demonstrate se discrimination on a disparate-treatment
theory under 3itle 5II, as the "tate did not create the market disparity and was not
shown to have been motivated by impermissible se-based considerations in setting
salaries(
RELI1IOUS DISCRIMINATION
Aotable because only protected class under 3itle 5II that is not considered an immutable
characteristic( ?verarching issues: *.+ need to interpret 3itle 5II to avoid conflicts with First
)mendment! *0+ clash between government interest in fighting discrimination and
autonomy of religious institutions! *2+ burden places on other employees by religious
accommodations
& '()a"!"
Forbids discrimination because of ( ( ( religion
& '(!F"
F" 3he term HreligionI includes all aspects of religious o#ser,ance and practice, as well
as belief, unless an employer demonstrates that he is unable to reasona#ly
accommodate to an employee's or prospective employee's religious observance or
practice without $nd$e *ards*ip on the conduct of the employer's business(
& '()a"A"
A" to limit, segregate, or classify his employees or applicants for employment in any
way which would deprive or tend to deprive any individual of employment opportunities
or otherwise adversely affect his status as an employee, because of such individual's
race, color, religion, se, or national origin(
%mployers must make reasonable accommodations to the religious needs of employees
where such accommodations can be made without undue hardship on the employers
business *i(e(, work cannot be performed by another employee of substantially similar
-ualifications+( EEOC
I. Scope o% MReli-ion:
a. +isconsin ,5 Yoder
i. ) religious belief or practice, unlike a matter of personal preference, is
characteri4ed by a deep religious conviction s*ared by an or-aniDed
group and intimately related to daily living
1. "ome courts have held that sometimes personal belief systems
count
b. EEOC
i. 3he %%?& defined religious practices to include moral or ethical
68
beliefs as to what is right or wrong which are sincerely held with the
strength of traditional religious views(
1. 3he fact that no religious group espouses such beliefs or the
fact that the religious group to which the individual professes to
belong may not accept such beliefs will not determine whether
its a religious belief(
a. 3he phrase religious practice includes both religious
observances and practices
c. Examples
i. OOO<no
ii. )theism<yes
iii. &at food<maybe
i!. 'hite supremacist church<yes
II. Reasona#le Accommodation 9 Und$e 4$rden
a. Failure to reasonably accommodate an employees or prospective
employees religious observance or practice without undue hardship on the
conduct of the employers business violates &'()a"A"
b. .rame/or0 %or .ail$re to Accommodate Case
i. Prima .acie Case
1. Asonia suggests that an employee may be entitled to a
reasonable accommodation by showing that he had a *.+
sincere religious belief that conflicted with an employment
policy, *0+ the employer was aware of the employees belief,
and *2+ the employee suffered an adverse employment action
for failing to comply with the policy(
ii. Reasona#le Accommodation
1. 3he #$rden then shifts to the employer to show either:
a. T*at it tired to reasona#ly accommodate t*at #elie%!
or
i. )n employer has met its obligation under JCF2*,+
when it demonstrates that it offered a reasonable
accommodation to the employee
1. 3he employer need only provide a
reasonable accommodation, not the most
reasonable accommodation or the one
favored by the employee Asonia
a. 3hus, where the employer provided
any accommodation that is deemed
reasonable, the case is over
because the employer has satisfied
J CF. *,+( 3he employer need no
further show that each of the
employees alternative
accommodations would result in
undue hardship(
ii. Partial Accommodations n( D p( BB2
1. &ourts are divided on whether partial
accommodations are sufficient( &ourt held
that employer met its obligation to
reasonably accommodate when it allowed
69
the employee to use all of his paid /
unpaid leave / some etra half-leave days
to cover his religious obligations(
iii. E7amples n( 7 p( BBF
1. %vangelical employee sends letters to co-
workers pointing out their sin! asked
supervisor to confess his sins9another to a
woman with a child born out of wed lock
a. H3 %ven though stems from genuine
religious belief, employer had no
duty to accommodate
2. %mployee at food est( wants to greet
customers with U;od 1less Pou( Aot all
customers found it positive, but employee
has sincere religious belief in evangelism
a. H3 $uty to accommodate( If it
becomes an issue, let her wear a
button(
3. %mployee takes a private religious vow to
ear a graphic anti-abortion button( &o-
workers complain *even &atholic ones+
a. H3 %mployer's proposal that plaintiff
cover antiabortion button containing
color photograph of fetus while at
work represented reasonable
accommodation of her religious
beliefs(
b. T*at t*e a,aila#le accommodations /o$ld impose
an $nd$e *ards*ip
i. 3he employer violates the statute unless it
demonstrates that it is unable to reasonably
accommodate en employees religious
observance or practice without undue hardship
on the conduct of the employers business(
1. 3he etent of undue hardship on the
employers business is at issue only where
the employer claims that it is unable to
offer any reasonable accommodation
without such hardship
ii. 3o re-uire an employer to bear more than a de
minimis cost in order to accommodate an
employee is an undue hardship( Hardison
III. Reli-io$s Entity E7ceptions *applies only to religious discrimination claims+
a. & '(A a" 3his subchapter shall not apply ( ( ( to a religious corporation,
association, educational institution, or society with respect to the
employment of individuals of a particular religion to perform work
connected with the carrying on by such corporation, association,
educational institution, or society of its activities(
See also J CF2*e+*0+ *religious educational institutional eemption+
70
i. Scope o% &'(Aa" e7ception
1. Co,ered Employers
a. "&?3L" held that &'(Aa" protects virtually all non-
profit activities of a religious entity from discrimination
claims, even a separate non-profit arm that is not itself
religious( Amos
i. #ut see To/nley En-ineerin- and
Man$%act$rin-<holding that a private, for-profit,
secular employer that runs its business in
accordance with strongly held religious beliefs will
generally not be eempted
b. ?nly entities that are primarily religious<typically those
that are part of or affiliated with a particular religious
organi4ation, rather than mere followers of a religion, will
be eempted(
2. Co,ered Practices
a. ) religious employer is eempted only from religious
discrimination, not other types of discrimination
prohibited by 3itle 5II(
b. %empts covered employers only with respect to
employment of religious followers(
i. &ourts have generally held that virtually all non-
hiring employment decisions of a religious
employer are not eempted by JCF0*a+, as the
intent was merely to allow religious employers to
choose employees who follow the same religion
b. Ministerial E7ception
3he Free %ercise &lause precludes ,udicial review of decisions by religious
entities concerning the terms and conditions of employment of their ministers
because the relationship between an organi4ed church and its ministers is
its lifeblood(
i. Scope
1. 3he ministerial eception is not limited to members of the
clergy( It has been applied to lay employees of religious
institutions who ,obs are important to the spiritual and pastoral
mission of the church(
a. )s a general rule, if the employees primary duties
consist of teaching, spreading the faith, church
governance, supervision of a religious order, or
supervision of or participation in religious ritual worship,
she should be considered clergy(
2. 'hether an individual falls within the ministerial eception must
be determined on an ad $oc basis by looking into all the
circumstances of employment Hosanna Ta#or
a. 8elevant factors include:
i. 3itle
ii. 8eligious training9education
iii. 8eligious mission underlying position held
i!. )mount of time spent on religious tasks
71
Trans +orld ,5 Hardison p( B7E
%mployees religious convictions prevented him from working on the "abbath( Pursuant
to &1), shift assignments were based on seniority( P had insufficient seniority to obtain
a non-"aturday shift( Lnion unsuccessfully attempted to find a worker would voluntarily
swap shifts with P and was unwilling to allow the employer to violate the &1)( P
discharged after the parties could not agree on accommodation( P proposed several
accommodations: *.+ create eception to the seniority rules! *0+ 7 day work week / get
another employee to fill in for P on "aturdays! *2+ offer premium wages for "aturday
shift( %mployer held several meetings to accommodate, allowed P off on special
holidays and authori4ed the unon to find someone to fill his shift(
I3 'hether the statutory obligation to accommodate religious needs takes precedence
over the &1) and seniority rights of the other employeesK
H3 Ao( 'hile neither a &1) nor a seniority system may be employed to violate 3itle 5II,
without a clear and epress indication from &ongress to the contrary, the duty to
accommodate cannot be read as to re-uire the employer to take steps inconsistent with
an otherwise valid agreement( 3itle 5II does not contemplate such une-ual treatment(
)bsent a discriminatory purpose, the operation of a seniority system cannot be an
unlawful employment practice even if the system has some discriminatory
conse-uences(
R3 3he repeated, une-uivocal emphasis of both the language and the legislative history
of 3itle 5II is on eliminating discrimination in employment, and such discrimination is
proscribed when it is directed against ma,orities as well as minorities(
I3 'hether employer reasonably accommodated Ps religious observances9practicesK
H3 Pes( 3o re-uire an employer to bear more than a de minimis cost in order to
accommodate an employee is an undue hardship( 1oth of the proposed alternatives
would involve costs to the employer, either in the form of lost efficiency in other ,obs or
higher wages(
Asonia ,5 P*il#roo0 p( B:B
3eacher re-uested modification of employers leave policy, as established under &1)(
3he agreement allowed a maimum of three days for paid mandatory religious holidays(
3he employee sought to use his three paid personal-leave days to cover additional
religious holidays or to pay for a substitute teacher while he received his higher salary,
but the employer refused both re-uests and instead offered the employee unpaid leave
for his etra religious holidays(
I3 'hether the duty to accommodate re-uired the employer to accept the proposal the
employee prefers unless that accommodation causes undue hardship(
H3 Ao( )n employer has met its obligation under J CF.*,+ when it demonstrates that it
has offered a reasonable accommodation to the employee(
I3 'hether the school boards leave policy constitutes a reasonable accommodationK
H3 8emanded( ) policy re-uiring an employee to take unpaid leave is generally a
reasonable one, but unpaid leave is not a reasonable accommodation when paid leave
is provided for all purposes except religious ones(
R3 In enacting J CF2*,+, &ongress was motivated by a desire to assure the individual
additional opportunity to observe religious practices, but it did not impose a duty on the
employer to accommodate at all costs( "uch an arrangement would display a
discrimination against religious practices that is the antithesis of reasonableness(
72
Hosanna;Ta#or
Plaintiff, a Hcall teacherI at a religious school took leave after being diagnosed with
narcolepsy( &alled teachers are regarded as having been called to their vocation by ;od
through a congregation( ?nce called, a teach receives the formal title of #inister of
8eligion, &ommissioned( ) call can only be rescinded for cause and by a superma,ority
vote of the congregation( )fter plaintiff sought to return, she was asked to resign as the
school no longer had a position for her( Plaintiff told defendant that she planned on
asserting her rights( $efendant sent plaintiff a letter stating that they were reviewing the
process of rescinding her call in light of her regrettable actions<citing insubordination
and disruptive behavior and the damage she had done to her working relationship with
the school by threatening legal action( &ongregation voted to rescind plaintiffs call(
Plaintiff filed charge with %%?& alleging that she was unlawfully retaliated against in
violation of )$)( $efendant invoked ministerial eception<arguing that plaintiff was
minister and had been fired for religious reason *that her threat to sue the church
violated the &hurchs belief that &hristians should resolve their disputes internally+( $&
granted defendants #"G as their suit was barred by ministerial eception( "ith &ircuit
reversed concluding that plaintiff was not a minister(
I3 'hether the %stablishment and Free %ercise &lauses of the First )mendment bar an
action for wrongful termination when the employee is one of the groups ministersK
H3 Pes( First )mendment provides, in part, that H&ongress shall make no law respecting
an establishment of religion, or prohibiting the free eercise thereof(I 1oth the free
eercise and establishment clauses bar the government from interfering with the
decision of a religious group to fire one of its ministers( 3he purpose of the eception is
not to safeguard a churchs decision to fire a minister only when it is made for a religious
reason( 3he eception instead ensures that the authority to select and control who will
minster to the faithful<a matter strictly ecclesiastical<is the churchs alone(
R3 1y imposing an unwanted minister, the state infringes the Free-% &lause, which
protects a religious groups right to shape its own faith and mission through its
appointments( )ccording the state the power to determine which individuals will minister
to the faithful also violates the %st( &lause, which prohibits government involvement in
such ecclesiastical decisions( Smit$ does not foreclose recognition of ministerial
eception because Smit$ involved government regulation of only outward physical acts
where as a ministerial eception concerns government interference with an internal
church decision that affects the faith and mission of the church itself(
I3 'hether the ministerial eception applies hereK
H3 Pes( 3he ministerial eception is not limited to the head of a religious congregation(
'e are reluctant to adopt a rigid formula for deciding when an employee -ualifies as a
minister( It is enough for us to conclude that the eception covers the plaintiff, given all
the circumstances of her employment( )lthough the title of minister, by itself, does not
automatically ensure coverage, the fact that an employee has been ordained or
commissioned as a minister is relevant, as is the fact that significant religious training
and a recogni4ed religious mission underlie the description of the employees position(
3hough relevant, it cannot be dispositive that other not formally recogni4ed as minister
by the church perform the same functions<particularly when the did so only because
commissioned ministers were unavailable( 3he amount of time an employee spends on
particular activities is relevant in assessing that employees status, but that factor cannot
be considered in isolation, without regard to the nature of the religious functions
performed and the other considerations discussed above( In light of these
considerations<the formal title given plaintiff by the &hurch, the substance reflected in
73
that title, her own use of that title, and the important religious functions she performed
for the church<we conclude that plaintiff was a minister covered by the ministerial
eception(
R3 &hurch held plaintiff out to be a minister! issued her a diploma of vocation and title of
#inister of 8eligion! plaintiff was tasked with performing office according to 'ord!
congregation prayed that ;od bless her ministrations to the glory of =is name!
congregation periodically reviewed her skills of ministry and ministerial responsibilities!
plaintiffs title as minister reflected a significant degree of religious training by a formal
process of commissioning! plaintiff held herself out as a minister of &hurch by accepting
the formal call to religious service! claimed eception for special housing allowance on
taes that was available only to employees earing their compensation in the eercise of
ministry
DISCRIMINATION 4ECAUSE O. A1E
%t is t$e very essence of age discrimination for an older employee to be fired because t$e
employer believes t$at productivity and competence decline wit$ old age.
ADEA &Ca"!"
It shall be unlawful for an employer to fail to refuse to hire or to discharge any individual
or otherwise discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment because of such individuals age *7FX+(
Oey %ceptions: 1F?6 / reasonable factor other than age
Sin-le Moti,e Disparate Treatment Claims
)naly4ed under McDonnell Douglas
I. Prima .acie Case
3o establish a PF& under the )$%), the P must prove:
a. =e is within the age group protected under the )$%) *7FX+
b. =e suffered an adverse employment action or disposition
c. =e was -ualified for the position either lost or not gained!
d. Person younger than the plaintiff was selected for the position of the plaintiff
i. 8eplacement by person s$#stantially yo$n-er than plaintiff satisfies
this re-uirement
1. &ourts split on whether : years difference is sufficient
2. Cth &ir(<less than .F years presumptively insubstantial unless
plaintiff has evidence employer considered age to be significant
ii. &laim not precluded by replacement of individual within protected
class
1. Consolidated Coin )$%) prohibit discrimination on the basis
of age, not class membership
II. Reasona#le .actor Ot*er T*an A-e
?nce the plaintiff establishes a PF&, the burden of production shifts to the employer
to show that it acted for some reason other than age(
a. In a disparate treatment case, liability depends on whether the protected trait
*age+, actually motivated the employers decision / had a determinative
influence on the outcome(
i. Factors correlated with age<generally permissible so long as the
8F?) is analytically distinct from age HaDen Paper
74
1. &onsideration of stereotypes is what the )$%) intended to
eradicate *e.g., perceived less creative, less productive, limited
skills, limited ability to ac-uire skills+ See Sperlin-
Analytically Distinct Test
3he -uestion is whether the factor considered is analytically distinct from age( HaDen
Paper
ii. Cost;F$sti%ication de%ense n(2 p( C7E
1. 1ecause age and compensation levels are analytically distinct,
an employer can take account of one while ignoring the other,
and thus it is incorrect to say that a decision based on
compensation level is necessarily age-based
III. Prete7t
3he burden of persuasion then rests with the plaintiff to show that age
discrimination motivated the adverse employment action(
Mi7ed Moti,e Claims
#ied motive claims are not actionable under the )$%)( ) plaintiff bringing a disparate
treatment claim pursuant to the )$%) must prove, by a preponderance of the evidence,
that age was the but-for cause of the challenged adverse employment action( 3he burden
of persuasion does not shift to the employer to show that it would have taken the action
regardless of age, even when a plaintiff has produced some evidence that age was one
motivating factor in that decision( See 1ross ,5 .4L
T*e 4ona .ide Occ$pational E$ali%ication De%ense
Section @A)%"!" provides that Han action otherwise prohibited under the )$%) is not
an unlawful employment practice where age is a bona fide occupational -ualification
reasonably necessary to the normal operation of the particular business(I
Tamiami Trail To$rs Test
In order to assert a 1F?6 defense the employer must prove:
&1' the age-related ,ob -ualification is reasonably necessary to the essence of the
employers business! and
&2' 3he -ualification is more than convenient or reasonable<it is compelled to rely on
age a proy for the safety-related -ualifications
a. 3he second prong can be satisfied only if the employer proves that it had a
factual basis for believing that all or substantially all persons over the age
limitation would be unable to perform safely and efficiently the duties of the
,ob involved, or alternatively, that age was a legitimate proy for the safety-
related ,ob -ualifications because it is impossible or highly impractical to deal
with older employees on an individuali4ed basis(
Disparate Impact
$isparate impact claims are cogni4able under the )$%) and analy4ed under the 1ards
Cove framework( 3he scope of $I liability under the )$%) is narrower than under 3itle 5II(
I. 3he burden is on the plaintiff to prove by a preponderance that particular
employment practice caused a discriminatory impact on people over 7F years of
age
75
a. 3he employee is responsible for isolating and identifying the specific
employment practices that are allegedly responsible for any observed
statistical disparities
i. 3herefore, they may not simply point to a practice that is relatively
harsher to older workers, they must support their claim with evidence
of a specific employment test, re-uirement or practice that causes
older workers to receive worse treatment than younger employees(
II. Reasona#le .actor Ot*er T*an A-e
3he employer can then escape liability merely by showing that its impact-producing
criterion was a reasonable factor(
18

a. 3he focus of the 8F?) defense is whether the factor relied upon was a
reasonable one for the employer to be using(
i. Lnlike the business necessity test, which asks whether there are
other ways for the employer to achieve its goals that do not result in a
disparate impact on a protected class, the reasonableness in-uiry
includes no such re-uirement
R.OA & @A)%"
It shall not be unlawful for an employer to take an action otherwise prohibited under
subsection *a+ where the differentiation is based on reasonable factors other than age(
HaDen Paper ,5 4i--ins p( C2C
&ompany fires plaintiff because hes about to vest his pension( Plaintiff is B0 years old(
Gury renders a verdict of liability under both %8I") and )$%)(
I3 'hether an employer violates the )$%) by acting on the basis of a factor, such as an
employees pension status or seniority that is empirically correlated with ageK
H3 Ao( )lthough there is often a correlation between age and vesting, that correlation is
not always true( It is the very essence of age discrimination for an older employee to be
fired because the employer believes that productivity and competence decline with old
age( 'hen the employers decision is wholly motivated by factors other than age, the
problem of inaccurate and stigmati4ing stereotypes disappears( 3his is true even if the
motivating factor is correlated with age, as pension status typically is<an employees
age is analytically distinct from his years of service( 3here is no disparate treatment
under the )$%) when the factor motivating the employer is some feature other than the
employees age( 3he -uestion is whether the factor considered is analytically distinct
from age( In a disparate treatment case, liability depends on whether the protected trait
*age+, actually motivated the employers decision( 'hatever the employers decision-
making process, a disparate treatment claim cannot succeed unless the employees
protected trait actually played a role in that process and had a determinative influence
on the outcome( 3he )$%) commands that employers are to evaluate older employees
on their merits and not their age( 3he employer cannot rely on age as a proy for an
employees remaining characteristics, such as productivity, but must instead focus on
those factors directly(
3he decision to fire an older employee solely because of his years of service and there
is close to vesting would not constitute discriminatory treatment on the basis of age( 3he
decision would not the result of inaccurate and denigrating generali4ation about age, but
would rather represent an accurate ,udgment about the employee<that he is indeed
18 .his is a si"nificantl% lo#er threshold than a .itle VII defendant is required to eet.
76
close to vesting(
Sperlin- ,5 Ho%%mannHLa Roc*e p( C72
Plaintiff was discharged pursuant to an 8IF known as ?peration 3urnabout( Plaintiff
brought )$%) class action on behalf of 7CB of the affected employees alleging that the
discharges or demotions violated their rights under the )$%)( 3he plaintiff identified nine
factors in determining who would be fired in ?peration 3urnabout(
I3 'hether any of the factors that plaintiffs listed in their answers to the contention
interrogatories no longer amount to a cause of action under the )$%) after 5a9en 2aperK
Analytically DistinctHDoes not state a ca$se o% action %or
/*ic* relie% can #e -ranted $nder t*e ADEA
States a ca$se o% action $nder
t*e ADEA
Hi-* salaryH is similar to years of service in that while, on
average, those workers with the highest salaries are older
workers, high salary and age are nonetheless analytically distinct,
and therefore, termination decisions based on the employees
level of compensation are not violative of the )$%)( 3hus, the
employer is correct in arguing that a claim made by a plaintiff that
the employer fired him because of his high salary, does not state a
cause of action for which relief can be granted under the )$%)(
Percei,ed as Less
Prod$cti,e6Creati,eH3his is
because consideration of
stereotypes such as these in
making employment decisions is
precisely what the )$%) was
intended to eradicate
Ample retirement #ene%its Percei,ed to *a,e Limited
S0ills and6or a#ility to Ac8$ire
S0ills
A-e related
Pro7imity to Retirement
Percei,ed as O,er;E$ali%ied6O,er;e7perienced
1ross , .4S .in5 Ser,ices
Plaintiff argued that he was demoted because of his age, while the employer claimed
that the plaintiff was merely reassigned due to business restructuring(
I3 'hether the )$%) authori4es mied-motives age discrimination claimsK
H3 Ao( ) plaintiff bringing a $3 claim pursuant to the )$%) must prove, by a
preponderance of the evidence, that age was the but-for cause of the challenged
adverse employment action( 3he burden of persuasion does not shift to the employer to
show that it would have taken the action regardless of age, even when a plaintiff has
produced some evidence that age was one motivating factor in that decision(
D3 "tevens, G(
3he most natural reading of the )$%) prohibits adverse employment actions motivated
in whole or in part by the age of the employee(
Smit* ,5 =ac0son2 MS
3he "mith suit was brought by police and public safety officers employed by the city of
Gackson, #ississippi( 3he officers complained that salary increases received in .EEE
violated the )$%) because they were less generous to officers over the age of 7F than
to younger officers(
I3 'hether the disparate-impact theory of recovery announced in ;riggs, is cogni4able
under the )$%)K
H3 Pes( 3he )$%) does authori4e recovery in disparate-impact cases comparable to
3riggs( 1ecause, however, we conclude that petitioners have not set forth a valid
77
disparate impact claim, we affirm( 3he scope of disparate-impact liability under the
)$%) is narrower than under 3itle 5II( =ence, 'ard &oves preR.EE. interpretation of
3itle 5IIs identical language remains applicable to the )$%)( It is not enough to simply
allege that there is a disparate impact on workers, or point to a generali4ed policy that
leads to such impact( 8ather, the employee is responsible for isolating and identifying
the specific employment practices that are allegedly responsibly for any observed
statistical disparities( &ity's revision of employee pay plan, granting raises to police and
public safety officers in order to bring their salaries up to regional average, did not
violate )$%), even though older, higher ranking officers received raises representing
lower percentage of their salaries! decision to grant larger raise to lower echelon
employees for purpose of bringing salaries in line with that of surrounding police forces
was decision based on Hreasonable factor other than ageI that responded to city's
legitimate goal of retaining police officers(
Meac*am ,5 Lnolls p( CCD
8IF led to the discharge of 2. employees<selected after being scored in terms of
performance, fleibility, and critical skills( 2F of those selected for discharge were at
least 7F years old( 0D of them sued under )$%), alleging tat the 8IF process had a
discriminatory impact on )$%) protected employees( 3o establish a $I, the workers,
relied on a statistical eperts testimony to the effect that the results so skewed
according to age could rarely occur by chance and that the scores for fleibility and
critical skills over which managers had the most discretionary ,udgment had the firmest
statistical ties to the outcome(
I3 'hether an employer facing a disparate-impact claim and planning to defend on the
basis of 8F?) must not only produce evidence raising the defense, but also persuade
the factfinder of its meritK
H3 Pes( 3he 8F?) is an affirmative defense as to which the employer bears the burden
of persuasion by a preponderance of the evidence(
DISA4ILITY DISCRIMINATION
%n t$e simplest of terms, t$e 6D6 pro$ibits covered entities from *+, discriminating against
*0, a disabled individual *:, w$o is ot$erwise &ualified for t$e position *;, because of t$at
individual7s disability *<, in t$e absence of an affirmative defense
ADA & !A!!A
*a+ Ao covered entity shall discriminate against a -ualified individual on the basis of
disability in regard to ,ob application procedures, the hiring, advancement, or discharge
of employees, employee compensation, ,ob training, and other terms, conditions, and
privileges of employment(
ADA &!A!!A
$iscriminatory practices
*b+ )s used in subsection *a+ of this section, the term Hdiscriminate against a -ualified
individual on the basis of disabilityI includes--
!" limiting, segregating, or classifying a ,ob applicant or employee in a way that
adversely affects the opportunities or status of such applicant or employee because of
the disability of such applicant or employee!
A" participating in a contractual or other arrangement or relationship that has the effect
78
of sub,ecting a covered entity's -ualified applicant or employee with a disability to the
discrimination prohibited by this subchapter *such relationship includes a relationship
with an employment or referral agency, labor union, an organi4ation providing fringe
benefits to an employee of the covered entity, or an organi4ation providing training and
apprenticeship programs+!
)" utili4ing standards, criteria, or methods of administration--
A" that have the effect of discrimination on the basis of disability! or
4" that perpetuate the discrimination of others who are sub,ect to common
administrative control!
C" ecluding or otherwise denying e-ual ,obs or benefits to a -ualified individual
because of the known disability of an individual with whom the -ualified individual is
known to have a relationship or association!
G"A" not making reasonable accommodations to the known physical or mental
limitations of an otherwise -ualified individual with a disability who is an applicant or
employee, unless such covered entity can demonstrate that the accommodation would
impose an undue hardship on the operation of the business of such covered entity! or
4" denying employment opportunities to a ,ob applicant or employee who is an
otherwise -ualified individual with a disability, if such denial is based on the need of
such covered entity to make reasonable accommodation to the physical or mental
impairments of the employee or applicant!
@" using -ualification standards, employment tests or other selection criteria that screen
out or tend to screen out an individual with a disability or a class of individuals with
disabilities unless the standard, test or other selection criteria, as used by the covered
entity, is shown to be ,ob-related for the position in -uestion and is consistent with
business necessity! and
'" failing to select and administer tests concerning employment in the most effective
manner to ensure that, when such test is administered to a ,ob applicant or employee
who has a disability that impairs sensory, manual, or speaking skills, such test results
accurately reflect the skills, aptitude, or whatever other factor of such applicant or
employee that such test purports to measure, rather than reflecting the impaired
sensory, manual, or speaking skills of such employee or applicant *ecept where such
skills are the factors that the test purports to measure+(
ADA & !A!!!
$efinitions
*0+ &overed entity
3he term Hcovered entityI means an employer, employment agency, labor organi4ation,
or ,oint labor-management committee(
*D+ 6ualified individual
3he term H-ualified individualI means an individual who, with or without reasonable
accommodation, can perform the essential functions of the employment position that
such individual holds or desires( For the purposes of this subchapter, consideration shall
be given to the employer's ,udgment as to what functions of a ,ob are essential, and if an
employer has prepared a written description before advertising or interviewing
applicants for the ,ob, this description shall be considered evidence of the essential
functions of the ,ob(
I. "cope of &overage
a. )$) protects a -ualified individual with a disability
79
i. ) -ualified individual is someone who can perform the essential
functions of a ,ob with or without reasonable accommodations
b. %-ual treatment
i. %mployer must treat employees and applicants e-ually when the
disability is irrelevant *i(e(, employee not re-uesting accommodation+
c. Preferential 3reatment
i. %mployer must treat a worker better when an accommodation is
needed to enable him to perform essential functions of ,ob(
d. $efenses
i. Lndue hardship or cost
ii. "afety or threats to the employee or to third parties
iii. 1usiness necessity
ADA Prima .acie Case
.( $isability
*a+ actual
*b+ history of
*c+ regarded as *motivated by actual or perceived impairment / not minor or
transitory+
*)+ Physical or #ental Impairment
i( ,ob and non-,ob related impairments
*1+ "ubstantially @imiting
i( without mitigating decide other than eye glasses
ii( need not prevent or severely restrict
iii( need not be permanent or long term
iv( can be in remission or episodic
v( working in broad class of ,obs
*&+ #a,or @ife )ctivity
i( or central importance to daily life
ii( one or more
0( ?therwise -ualified
*a+ can preform essential ,ob functions
*b+ with or without reasonable accommodation
2( $iscrimination
*a+ adverse action
*)+ $isparate 3reatment
*1+ $isparate Impact
*b+ failure to accommodate
*)+ %mployer knew of Ps need for accommodation
*1+ Plaintiff was otherwise -ualified
*&+ %8 failed or refused to fulfill its duty to make a reasonable
accommodation that did not result in undue hardship
*c+ associational
Aon-disabled P! association w9 disabled third party discrimination caused by third
partys disability( 3hree types:
*)+ %pense claims
*1+ $istraction &laims
*&+ $isability by association claims
7( &ausation
80
I. Meanin- o% Disa#ility
3he proper framework for resolving whether a plaintiff is disabled is to determine
whether that person *a+ has or had or is regarded as having *b+ a physical or mental
impairment *c+ that substantially limits *d+ a ma,or life activity( 4ra-don
a. P m$st pro,eH
i. Disa#ility Stat$s & )A"
1. &urrently has
2. =istory of
3. ?r regarded as
a. ) P can establish that she is regarded as being impaired
simply by proving that the defendants challenged
conduct was motivated by the plaintiffs actual or
perceived *by the employer+ impairment, irrespective of
the impairments actual or perceived limiting impact
upon a ma,or life activity( & ))"
i. "ub,ectively determined
b. ?nly has to establish a causal link between adverse
action an actual or perceived impairment
i. E>CEPT regarded as status will not attach when
the impairment is merely transitory or minor & )A"
1. 3ransitory > an actual or epected duration
of si months or less
ii. P*ysical or Mental Impairment
& )!"A"
*.+ $isability
3he term HdisabilityI means, with respect to an individual--
*)+ a physical or mental impairment that substantially limits one or more ma,or life
activities of such individual!
1. &ourts must make an individuali9ed evaluation of any asserted
condition guided by the following considerations:
a. %hysical impairment includes
i. )ny physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or
more body systems, such as neurological,
musculoskeletal, special sense organs,
respiratory *including speech organs+,
cardiovascular, reproductive, digestive,
genitourinary, immune, circulatory, hemic,
lymphatic, skin, and endocrine!
b. !ental impairment includes
i. )ny mental or psychological disorder, such as an
intellectual disability *formerly termed Hmental
retardationI+, organic brain syndrome, emotional
or mental illness, and specific learning disabilities(
c. E7ceptions
i. 3ransvestites & G(J
ii. &urrent illegal drug use & G!!
1. 4$t J .F7*b+ provides that someone who
81
is participating in or has successfully
completed a supervised rehab and is not
currently using illegal drugs meets
definition of presently or previously having
a history of a physical or mental
impairment
iii. =omoseuality9biseuality9transeualism9pedophil
ia, ehibitionism9voyeurism9 gender identity
disorders not resulting from physical impairments
or other seual behavior disorders & G!Aa"
i!. &ompulsive gambling, kleptomania, pyromania,
and psychoactive substance use disorders
resulting from current illegal use of drugs &
G!A#"
iii. S$#stantially limitin-
1. 3he definition of disability shall be construed in favor of broad
overage of individuals to the maimum etent permitted by the
terms of this )ct ( ( ( substantially limits shall be interpreted
consistently with the findings and purposes of the )$) & ))"
a. 8epudiating Toyota narrowly reading that an impairment
is substantially limiting only if it prevents or severely
restricts the individual from performing one or more
ma,or life activities(
2. "ubstantially limits include impairments that are episodic or in
remission if that condition would substantially limit a ma,or life
activity when active(
a. 8epudiating Toyota holding that substantially limits
means that the impact of the plaintiffs impairment must
be permanent or long term
3. TEST 3o meet the statutory definition of disability, the plaintiff
must establish that her impairment substantially limited those
manual tasks that were central to daily life *i(e(, on an off the
,ob+( 8e-uires assessment of the impact of an impairment on
both ,ob and non-,ob related aspects of a variety of ma,or life
activities beyond performing manual tasks( Toyota
4. Miti-atin- De,ices
a. 3he determination of whether an impairment
substantially limits a ma,or life activity shall be made
without regard to the ameliorative effects of mitigating
measures such as! & )C"
i. medication, medical supplies, e-uipment, or
appliances, low-vision devices *which do not
include ordinary eyeglasses or contact lenses+,
prosthetics including limbs and devices, hearing
aids and cochlear implants or other implantable
hearing devices, mobility devices, or oygen
therapy e-uipment and supplies!
ii. use of assistive technology!
iii. reasonable accommodations or auiliary aids or
services! or
82
i!. learned behavioral or adaptive neurological
modifications(
b. E7cept courts must consider the ameliorative impact of
contacts and glasses in making the substantially limits
assessment
i. 3hus, where a persons impairment is corrected
by glasses or contacts that person does not have
an impairment that presently substantially limits a
ma,or life activity
1. 1ut if an employer utili4es an employment
criterion based on an individuals
uncorrected vision, the employer must
prove that this criterion is ,ob-related and
consistent with business necessity(
i!. MaFor Li%e Acti,ity
1. ) ma,or life activity is an activity of central importance to daily
life(
a. #a,or life activities include, but are not limited to, caring
for oneself, performing manual tasks, seeing, hearing,
eating, sleeping, walking, standing, lifting, bending,
speaking, breathing, learning, reading, concentrating,
thinking, communicating, and working( & )A"A"
b. ) ma,or life activity also includes the operation of a
ma,or bodily function, including but not limited to,
functions of the immune system, normal cell growth,
digestive, bowel, bladder, neurological, brain,
respiratory, circulatory, endocrine, and reproductive
functions( & )A"4"
2. ) plaintiff need only show that an impairment substantially
limits one ma,or life activity & )C"C"
3. $riving n(0 p( D:D
a. Aot a ma,or life activity
II. Ot*er/ise 8$ali%ied
a. P must persuade trier of fact that she can perform the essential ,ob functions
with or without the benefit of a reasonable accommodation & !(!K"
i. In determining what constitutes an essential function, the employers
,udgment on the matter, including any written ,ob description prepared
before advertising or interviewing applicants for the particular ,ob,
must be considered
b. .ormer Employees Alle-in- Post;Employment Discrimination
i. "ome courts hold that the statute only protects individuals who are
able to perform the ,ob functions at the time of the alleged
discrimination
ii. "ome courts re-uire the plaintiff to establish that he had been able to
perform the essential functions of the ,ob while employed
III. Discrimination
a. Ad,erse Action
i. Disparate Treatment
1. Plaintiff has burden to prove PF& of discrimination
a. 3o establish a prima facie case of discrimination under
83
the )$), an employee must show that she:
*.+ is disabled within the meaning of the )$)!
*0+ is a -ualified individual under the )$)! and
*2+ has suffered an adverse employment decision
because of the disability(
2. 1urden of production shifts to employer to articulate @A$8
3. 1urden returns to the plaintiff to prove that discrimination
actually motivated decision
ii. Disparate Impact
1. ADA & !A!!A 4"
*2+ utili4ing standards, criteria, or methods of administration
*)+ that have the effect of discrimination on the basis of
disability
*B+ using -ualification standards, employment tests or other
selection criteria that screen out or tend to screen out an
individual with a disability or a class of individuals with
disabilities unless the standard, test or other selection
criteria, as used by the covered entity, is shown to be ,ob-
related for the position in -uestion and is consistent with
business necessity!
A5
iii. Retaliation
1. Ao person shall discriminate against any individual because
such individual has opposed any act or practice made
unlawful by this chapter or because such individual made a
charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing under this chapter(
&G()a"
i!. Inter%erence
1. It shall be unlawful to coerce, intimidate, threaten, or interfere
with any individual in the eercise or en,oyment of, or on
account of his or her having eercised or en,oyed, or on
account of his or her having aided or encouraged any other
individual in the eercise or en,oyment of, any right granted
or protected by this chapter( &G()#"
b. Reasona#le Accommodation *form of disparate treatment+
i. Prima .acie Case
1. 3o state a claim for failure to accommodate under the )$), a
plaintiff must show that she:
*.+ had a disability as defined by the )$),
*0+ was able to perform the essential functions of the ,ob, with
or without reasonable accommodation *otherwise -ualified
individual+, and
*2+ that the employer knew of her disability
*7+ that the employer failed or refused to fulfill its duty to make
a reasonable accommodation that did not result in undue
hardship
& !(A#"G"
84
ii. Reasona#le Accommodation
1. P bears burden of proving that a particular accommodation is
reasonable 4ennett
a. .b4ectively determined standard calculated by balancing
the impact of this alteration on the plaintiffs ability to
perform essential ,ob functions against its effect upon
the conduct of business in the general run of situations
2. If the P re,ects a reasonable accommodation, she no longer will
be considered to be a -ualified individual with a disability, and
therefore, forfeit her protected status
3. %mployer should not be held to assume that every disabled
individual suffers from a limitation that needs accommodation<
P must inform employer of need
4. 8e-uires employer to engage in some form of preferential
treatment
5. E7amples o% reasona#le accommodations
a. making eisting facilities used by employees readily
accessible to and usable by individuals with disabilities!
and
& !(!J"A"
b. ,ob restructuring, part-time or modified work schedules,
reassignment to a vacant position, ac-uisition or
modification of e-uipment or devices, appropriate
ad,ustment or modifications of eaminations, training
materials or policies, the provision of -ualified readers or
interpreters, and other similar accommodations for
individuals with disabilities(
& !(!J"4"
iii. Und$e 4$rden
1. 1urden of persuasion shifts to employer to demonstrate that
this accommodation would impose an undue hardship upon it
in light of its particular circumstances(
a. %conomic safe harbor for the particular employer, e.g., it
re-uires an evaluation of the specific defendants ability
to sustain the cost of an otherwise reasonable
accommodation, regardless of whether a different
employer might be re-uired to adopt that same
proposed accommodation *sub,ective case-by-case
standard+
2. 3he term Hundue hardshipI means an action re-uiring
significant difficulty or expense & !(!!("A"
a. In determining whether an accommodation would
impose an undue hardship on a covered entity, factors
to be considered include--
i" the nature and cost of the accommodation needed
under this chapter!
ii" the overall financial resources of the facility or
facilities involved in the provision of the reasonable
accommodation! the number of persons employed at
85
such facility! the effect on epenses and resources, or
the impact otherwise of such accommodation upon
the operation of the facility!
iii" the overall financial resources of the covered
entity! the overall si4e of the business of a covered
entity with respect to the number of its employees! the
number, type, and location of its facilities! and
i," the type of operation or operations of the covered
entity, including the composition, structure, and
functions of the workforce of such entity! the
geographic separateness, administrative, or fiscal
relationship of the facility or facilities in -uestion to the
covered entity( & !(!!("4"
3. 3he duty to accommodation only eists to the etent that a
reasonable accommodation will result in the disabled
individuals being able to perform the essential functions of the
,ob
a. 3hus, modifying or eliminating an essential ,ob function
is not a reasonable accommodation
4. 4alancin- Test
a. &ourts must balance the cost and difficulty against the
employer resources, si4e and structure
5. Seniority Systems See US Air ,5 4ennett
a. 3o show that a re-uested accommodation conflicts with
the rules of seniority system is ordinarily to show that the
accommodation is not reasonable( =ence such a
showing will entitle an employer to summary ,udgment
on the -uestion(
i. E>CEPT
1. ) plaintiff may defeat "G by showing the
eistence of special circumstances that
warrant a finding that, despite the
presence of a seniority system, the
re-uested accommodation is reasonable
on the particular fact *e.g., employer
retained right change seniority system
unilaterally and eercises that right fairly
fre-uently, thus reducing employee
epectations that the system will be
followed, or that the system already
contains eceptions such that, in the
circumstances, one further eception is
unlikely to matter+(
2. 3he plaintiff must bear the burden of
showing special circumstances that an
eception from the seniority system is
reasonable in the particular case( )nd to
do so, the plaintiff must eplain why, in the
particular case, an eception to the
86
employers seniority policy can constitute a
reasonable accommodation even though
in the ordinary case it cannot(
6. ?acant Positions
a. .Fth &ir( "tandard<reassignment under the )$) results
in automatically awarding a position to a -ualified
disabled employee regardless whether other better
-ualified applicants are available, and despite an
employer policy to hire the best applicant
b. Cth &ir( "tandard<)$) reassignment does not re-uire
an employer to reassign a -ualified disabled employee
to a ,ob for which there is a more -ualified applicant(
)dopted by court in H$#er
i. 3he contrary rule would convert a
nondiscrimination statute into a mandatory
preference statute, a result which would be both
inconsistent with the nondiscriminatory aims of
the )$) and an unreasonable imposition on the
employers and coworkers of disable employees(
) policy of giving the ,ob to the best applicant is
legitimate and nondiscriminatory( $ecisions on
the merits are not discriminatory( See H$miston;
Leelin- p( D0E
c. Association
i. Prohibits discrimination against a -ualified individual because of the
known disability of someone else with whom that -ualified individual is
known that have a relationship or association & !(A#"C"
1. E7pense Claims
a. 'here the employee is alleged to have discriminated
against an employee between that employees
association with a disabled individual *typically familial+
imposed significant costs *e.g., in connection with an
employers health or disability plan+ on the employer
2. Distraction Claims
a. 'here the employer is alleged to have discriminated
against an employee out off concern that this employee
would be distracted from work by obligations *e.g.,
providing care+ to a disabled person with whom the
employee is associated
3. Disa#ility 4y Association Claims
a. 'here the employer is alleged to have discriminated
against an employee because the employer is
concerned that this employee would develop a disabling
condition *e.g., infection or disease+ because of her
relationship to a disabled individual+
ii. Irrespective of which form of an associational claim advanced by P,
she must establish causation, i(e(, that she was disadvantaged
because of her association with a disabled person(
IV. Ca$sation
a. Plaintiff must prove that the discrimination was linked to her disabling
87
condition
De%enses
Intentional Discrimination Disparate Impact
.( $irect threat to health / safety of ?thers
and9or self
0( 1ona fide insurance plans
2( 8eligious entities
Gob related / business necessity
I. Direct T*reat
3he eistence of a direct threat is an affirmative defense as to which the
defendant bears the burden of persuasion
a. 3he term H-ualification standardsI may include a re-uirement that an
individual shall not pose a direct threat to the health or safety of other
individuals in the workplace( & !()#"
i. 'hether an employees disability poses a direct threat must be
assessed ob,ectively in light of the following factors:
1. )vailable medical evidence
a. w9 particular focus on the view of public health
authorities such as:
i. L" Public =ealth "ervice
ii. Aational Institutes of =ealth
iii. &$&
ii. 3he term Hdirect threatI means a significant risk to the health or
safety of others that cannot be eliminated by reasonable
accommodation( & !(!)"
1. 3hus, the court must evaluate whether that risk can be
eliminated by a reasonable accommodation
II. 4ona %ide ins$rance plans
a. & G(!c"!" permits employers, insurers, and plan administrators to establish
and implement the terms of an insured *i(e(, purchased from someone else,
such as an insurance company+ health insurance plan based on
underwriting, classifying, or administering risks that are neither inconsistent
with state law no used as a subterfuge to evade the purposes of the act
b. Lnder & G(!c"A", employers can create or observe the terms of, a bona
fide self-insured health insurance plan that is not used as a subterfuge to
evade the purposes of the act(
i. 3hus, where a plaintiff alleges that an employers health insurance
plan contains a disability-based distinction, in order to fall within the
protection of & G(!c", the employer must establish that this provision
is part of either a bona fide insured plan that is not inconsistent with
state law or a bona fide self-insured plan and, in either case, that the
plan is not being used as a subterfuge to evade the purposes of the
act(
III. Reli-io$s entities
a. & !()d" provides that a religious organi4ation may discriminate on the basis
of religion with respect to another with its activities(
IV. =o# related 9 #$siness necessity
a. It may be a defense to a charge of discrimination under this chapter that an
88
alleged application of -ualification standards, tests, or selection criteria that
screen out or tend to screen out or otherwise deny a ,ob or benefit to an
individual with a disability has been shown to be Fo#;related and consistent
/it* #$siness necessity, and such performance cannot be accomplished
by reasonable accommodation, as re-uired under this subchapter( & !()d"
Rayt*eon ,5 HernandeD
Plaintiff fired by employer after failing drug test( )pplies for ,ob at employer again two
years later( Is re,ected because rule against rehiring any former worker discharged for
workplace misconduct( Plaintiff argues that employer re,ected him because of his record
of drug abuse *$3 claim+( P later raises an untimely $I impact claim re the no-hire rule(
Eth &ir( "ays that a neutral rule against rehire cannot be @A$8 because it has a
disparate impact on recovering drug addicts(
H3 %mployers proffer of its neutral no-rehire policy plainly satisfied its obligation under
#c$onnell $ouglas to provide a @A$8 for refusing to rehire the plaintiff( If petitioner did
indeed apply a neutral, generally applicable no-rehire policy in re,ecting plaintiffs
application, the employers decision not to rehire respondent can, in no way, be said to
have been motivated by ps disability( 1ecause the Eth &ir( Improperly applied a $I
analysis in a disparate treatment case in order to reach their holding, we vacate its
,udgment and remand the case for further proceedings consistent with this opinion(
US Air ,5 4arnett
Plaintiff worked in cargo-handling position and was subse-uently in,ured his back( P
invokes seniority and is temporarily assigned to mailroom( P is bumped by a more
senior employee( P re-uested that employer accommodate his disability-imposed
limitation by making an eception that would allow him to remain in the mailroom(
%mployer decided not to make an eception to the seniority provision(
I3 'hether the )$) re-uires an employer to reassign a disabled employee to a position
as a reasonable accommodation even though another employee is entitled to hold the
position under the employers bona fide and established seniority systemK
H3 Ao( 3o show that a re-uested accommodation conflicts with the rules of seniority
system is ordinarily to show that the accommodation is not reasonable( =ence such a
showing will entitle an employer to summary ,udgment on the -uestion( ) plaintiff may
defeat "G by showing the eistence of special circumstances that warrant a finding that,
despite the presence of a seniority system, the re-uested accommodation is reasonable
on the particular fact *e.g., employer retained right change seniority system unilaterally
and eercises that right fairly fre-uently, thus reducing employee epectations that the
system will be followed, or that the system already contains eceptions such that, in the
circumstances, one further eception is unlikely to matter+( 3he plaintiff must bear the
burden of showing special circumstances that an eception from the seniority system is
reasonable in the particular case( )nd to do so, the plaintiff must eplain why, in the
particular case, an eception to the employers seniority policy can constitute a
reasonable accommodation even though in the ordinary case it cannot(
H$#er ,5 +al;Mart
P worked as dry grocery order filler making .2(FF9hr and subse-uent permanently
in,ured her hand( "he was no longer able to perform the essential functions of the order
filler ,ob( P sought, as a reasonable accommodation, reassignment to a router position(
89
%mployer did not agree to reassign P automatically to the router position( Instead
employer re-uired P to apply and compete for the router position with other applicants(
Lltimately, the employer filled the ,ob with a non-disabled applicant who was more
-ualified than P( %mployer later placed P in a maintenance associate position which paid
B(0F9hr(
I3 'hether an employer who has an established policy to fill vacant ,ob positions with
the most -ualified applicant is re-uired to reassign a -ualified disabled employee to a
vacant position, although the disabled employee is not the most -ualified applicant for
the positionK
H3 Ao( 8elying on 4arnett, the court held that the )$) is not an affirmative action
statute and does not re-uire an employer to reassign a -ualified disable employee to a
vacant position when such reassignment would violate a legitimate nondiscriminatory
policy of the employer to hire the most -ualified candidate( 3hus, the )$) does not
re-uire 'al-#art to turn away a superior applicant for the router position in order to give
the position to =uber( 3hat is giving a ,ob to someone solely on the basis of his status as
a member of a statutorily protected group( 'al-#art reasonably accommodated =uber
by placing =uber in a maintenance associate position( )n employer is not re-uired to
provide a disabled employee with an accommodation that is ideal from the employees
perspective, only an accommodation that is reasonable( 3o conclude otherwise is
affirmative action with a vengeance( 3o make a PF& in a reasonable accommodation
claim under the )$), the P must show she *.+ has a disability within the meaning of the
)$), *0+ is a -ualified individual, and *2+ suffered an adverse employment action as a
result of the disability( 3o be a -ualified individual within the meaning of the )$), and
employee must *.+ possess the re-uisite skill, education, eperience, and training for
her position! and *0+ be able to perform the essential ,ob functions, with or without a
reasonable accommodation( )$) states that the scope of reasonable accommodation
may include ( ( ( reassignment to a vacant position(
S$tton ,5 United Air
"everely myopic twin sisters were re,ected for employment as pilots by employer
because they did not satisfy its visual acuity re-uirements( Plaintiffs alleged that their
visual disability precluded them from working as global airline pilots(
I3 'hen is a P regarded as having a disabilityK
H3 'here plaintiff was neither presently nor previously disabled she could only be
regarded as disabled if the employer operated under one of two erroneous premises: *.+
employer operated under the mistaken belief that the plaintiff had a physical or mental
impairment that was substantially limiting or *0+ the employer correctly believed that the
plaintiff impaired but was mistaken about its impact on one or more ma,or life activities
*e.g., employer believed that a non-limiting impairment was substantially limiting+(
I3 'hen does an impairment substantially limitingK
H3 )n impairment will be found to substantially limit the ma,or life activity of working
when, at a minimum, it rendered the plaintiff unable to work in a broad class of ,obs( 3he
inability to perform a single, particular ,ob, does not constitute a substantial limitation(
3hus, the plaintiffs disability must preclude him from more than one type of ,ob, a
speciali4ed ,ob, or a particular class of ,ob( ) plaintiff is not substantially limited in
working where positions utili4ing his skills are available or where a host of different types
of ,obs for which he is -ualified are available(
I3 'hether plaintiffs had met the substantially limiting thresholdK
H3 Ao( 3here were other positions that the Ps were -ualified for such as regional pilot
90
and pilot instructors(
I3 'hether disability is to be determined with or without reference to corrective
measuresK
H3 If a person is taking measures to correct for, or mitigate, a physical or mental
impairment, the effects of those measures<both positive and negative<must be taken
into account when ,udging whether that person is Hsubstantially limitedI in a ma,or life
activity and thus HdisabledI under the )ct(
Toyota ,5 +illiams
Plaintiff suffered from carpal tunnel syndrome which prevented her from performing
some of her ,ob duties involving manual labor but which did not prevent her from
performing manual tasks at home(
I: 'hat is the proper standard for assessing whether an individual is substantially limited
in performing manual tasksK
H: 3o be substantially limited in performing manual tasks, an individual must have an
impairment that prevents or severely restricts the individual from doing activities that are
of central importance to most people's daily lives( 3he impairment's impact must also be
permanent or long term(
I3 'hether the &?) erred in considering only the impact of her carpal tunnel syndrome
on her ability to perform ,ob-related manual tasksK
H3 Pes( 3o meet the statutory definition of disability, the plaintiff had to establish that her
impairment substantially limited those manual tasks that were central to daily life, i(e(,
ones that occurred on and off the ,ob(
91