Claims: Individual Disparate Treatment

Question 1

What are the 5 types of claims?

Answer 1

Individual disparate treatment

Systemic disparate treatment

System disparate impact

Harassment

Retaliation

Question 2

What is individual disparate treatment?

Answer 2

The employer treats an individual differently from others because of a prohibited characteristic.

Question 3

To make a claim of individual disparate treatment, what must a claimant show?

Answer 3

Intent

Question 4

How can intent under the individual disparate treatment framework be show? (2)

Answer 4

Single Motive

Mixed Motive

Question 5

What is the name of the test used to evaluate single motive, individual disparate treatment?

Answer 5

McDonnell Douglas Test

Question 6

The McDonnell Douglas Test evaluates what?

Answer 6

single motive, individual disparate treatment

Question 7

The McDonnell Douglas Test is what type of test?

Answer 7

Burden shifting

Question 8

What four or five things must a plaintiff prove in a prima facie case for single motive, individual disparate treatment?

Answer 8

Membership in a protected class

Qualified for the position (adequacy standard)

[Applied for an open position OR suffered an adverse employment action

Position remained open OR was filled with someone outside of the protected class.

Question 9

Once the prima facie case is established in a single motive, individual disparate treatment case, what effect?

Answer 9

A presumption of discrimination is created.

Question 10

Once a presumption of discrimination is created in a single motive, individual disparate treatment case, what happens if the employer remains silent?

Answer 10

Plaintiff wins

Question 11

Once the prima facie case is established in a single motive, individual disparate treatment case, the burden shifts to the employer to articulate a “ ______, ______ ______” for the employment action.

Answer 11

Legitimate, non-discriminatory reason.

Question 12

When a defendant meets its burden of articulating a legitimate, non-discriminatory reason for its action in a single motive, individual disparate treatment case, what effect?

Answer 12

The presumption of discrimination will be dropped.

Question 13

When a defendant meets its burden of articulating a legitimate, non-discriminatory reason for its action in a single motive, individual disparate treatment case, the burden shifts to the plaintiff to prove ______.

Answer 13

Pretext.

Question 14

In order to show pretext in a single motive, individual disparate treatment case, the plaintiff must prove what two things?

Answer 14

That the LNDR offered by D is not the real reason behind the employment action; AND

The real reason behind the employment action was discrimination and the discrimination was the determinative factor in the decision.

Question 15

True or False: Once a plaintiff shows that the LNDR is false in a single motive, individual disparate treatment case, he is entitled to judgment as a matter of law.

Answer 15

False.

Question 16

Summarize the burden shifting system under the McDonnell Douglas Test for single motive, individual disparate treatment cases.

Answer 16

P proves the prima facie case

D articulates a LNDR

P prove pretext (i.e., membership in the protected class was a determinative factor in the decision).

Question 17

What is a mixed motive, individual disparate treatment case?

Answer 17

One in which the employment action was taken due to both permissible and impermissible motives.

Question 18

What is true of the causation standard in a mixed motive, individual disparate treatment case?

Answer 18

Lower causation standard.

Question 19

True or False: Each statute gets its own framework fort mixed motive, individual disparate treatment cases.

Answer 19

True

Fuck . . .

Question 20

For a mixed motive, individual disparate treatment case under Title VII, an unlawful employment action is established when a plaintiff has demonstrated that an impermissible reason was a ________ ________ in the decision.

This is known as the ______ Instruction

Answer 20

Motivating Factor.

703(m).

Question 21

If a plaintiff has made a 703(m) showing (i.e., an impermissible reason was a motivating factor in the decision) under Title VII, the defendant can use what defense?

Answer 21

The Same Decision Defense

Question 22

Under the same decision defense for a mixed motive, individual disparate treatment case under Title VII, the defendant has the opportunity to do what? What burden of proof?

Answer 22

Demonstrate that it would have made the same decision in the absence of the impermissible reason

Preponderance of the evidence.

Question 23

If a Defendant is successful in establishing a Same Decision Defense in a mixed motive, individual disparate treatment case under Title VII, then the court may grant what? (4)

Answer 23

Declaratory relief

Injunctive Relief

Attu’s fees

Costs

Question 24

If a Defendant is successful in establishing a Same Decision Defense in a mixed motive, individual disparate treatment case under Title VII, then the court may NOT grant what? (4)

Answer 24

Damages

Reinstatement

Hiring

Promotion

Question 25

Does the mixed motive, individual disparate treatment case require direct evidence under Title VII?

Answer 25

No

Question 26

Under the ADA, a claim for mixed motive, individual disparate treatment generally requires the plaintiff to have what?

Answer 26

Direct evidence that an impermissible reason was a motivating factor in the decision.

Question 27

Once an ADA claimant presents Direct evidence that an impermissible reason was a motivating factor in the decision for a claim for mixed motive, individual disparate treatment, the employer may avoid liability how? Standard of proof?

What is this defense called?

Answer 27

By proving that it would have made the same decision absent the impermissible reason.

Preponderance of the Evidence

Price Waterhouse Framework

Question 28

For which statute is a claim for mixed motive, individual disparate treatment NOT permitted?

Answer 28

ADEA.

Question 29

Describe the different points at which liability attaches to the employer under Title VII and the ADA for claims of systemic disparate treatment.

Answer 29

Under Title VII, liability attaches after P shows that the impermissible reason was a motivating factor

Under the ADA, liability attaches after the employer has an opportunity to show the Same Decision Defense.

Question 30

How does the effect of the Same Decision Defense differ under Title VII and the ADA?

Answer 30

Under Title VII, the SDD merely reduces the available remedies.

Under ADA, the SDD absolves liability altogether.

Question 31

Why are no mixed motive claims of individual disparate treatment permitted under the ADEA?

Answer 31

Age must be the but-for cause of the action.

Question 32

If a claimant has direct evidence of discrimination, he need not address . . .

Answer 32

The McDonnell Douglas Burden Shifting Test