disparate treatment -- intentional discrimination

Question 1

what is disparate treatment

Answer 1

aka intentional discrimination;

when an individual attempts to prove that an employer discriminated on the basis of a protected characteristic

Question 2

what theory are most employment claim brought under

Answer 2

disparate treatmemt

Question 3

what does the ‘because of’ in title vii require a showing of

Answer 3

establishing that the employer INTENDED to discriminate

Question 4

what does mcdonell Douglass answer and what is established in this case

Answer 4

Answers HOW we SHOW discrimination through circumstantial evidence

The four prong test established IN THIS CASE

Question 5

what kind of evidnece do you usually have in an intentional discrim case – direct or circumstantial

Answer 5

direct

Question 6

when do you applu the McDonnell Douglas test

Answer 6

when you have intentional discrimination that you are proving via CIRCUMSTANTIAL EVIDENCE

Question 7

who has the initial burden under mcdonell douglas ? what must they prove to establish a prima facie case of discrimination based on circumstantial evidence?

Answer 7

the plantiff must prove

Member of a protected class;
Qualified for the job;
Suffered an adverse action; and
Some other evidence of discrimination in the case.

Question 8

what happens after the p establishes a prima facie case via mcdonell

Answer 8

there is a presumption of discriminato and the burden shifts to the d to show legit reason that was not discrimiantion

Question 9

what is the burden put on D when its shifted to them to show legit non discrim reason

Answer 9

burden of production ie they dont have to convince

Question 10

what is the burden put on p

Answer 10

they alwasy have the burden of persusasion(by the preponderance of the evidence)

Question 11

what is the key takeaway from burdine

Whether, after the p has proved a prima facie case of discriminatory treatment, the burden shifts to the d to persuade the court by a preponderance of the evidence that legitimate, nondiscriminatory reasons for the challenged employment action existed

Answer 11

Refines the d’s burden – just has the BURDEN OF PRODUCTION

Articulate a legit reason , but you DONT HAVE TO CONVINCE, JUST PRODUCE IE BURDEN OF PRODUCTION

Question 12

what happens to the inference of discrim if D is able to articulate a legit non discrim reason

Answer 12

the inference drops and the burden shifts back to the p to show the nondiscriminatory reason was pretext (ie punching holes )

Question 13

how does understanding the mcdonell framework help employers

Answer 13

If you as an employer know the test, you can discuss ahead of time how to minimize the threat of litigation

Question 14

what does it mean for a d to ARTICUALTE a legit no discrim reason when the burden shifts to them

Answer 14

Employer must only introduce enough evidence of a non-discriminatory reason;
Must be clear and reasonably specific.

Question 15

what does it mean for ps that when the burden shifts to d, their burden is so easily met

Answer 15

the plaintiff will almost always be required to persuade the court that the defendant’s reasons are pretextual.

Question 16

what is the key takeaway from Hicks

Whether, in a suit against an employer alleging intentional racial discrimination in violation of § 703(a)(1) of Title VII, the trier of fact’s rejection of the employer’s asserted reasons for its actions mandates a finding for the plaintiff?

Answer 16

The fact finder’s disbelief of the reasons put forward by the defendant may, together with the elements of the prima facie case, suffice to show intentional discrimination.

The rejection of the defendant’s proffered reasons will permit an inference of intentional discrimination.

Question 17

what are some examples of d’s legit nondiscriminatory reason

Answer 17

The employee doesn’t show up
They don’t follow the rules
They are not good at the job
They did something bad on the clock

Question 18

what is a good rule of thumb for ds when they fire someone /take an adverse action

Answer 18

pin your reason on SOMETHING SUBSTANTIVE

But pick the reason and STICK TO IT

Question 19

in the mcdonell framework, what does a p need to show that they were qualifed

Answer 19

isn’t enough that you do the job ‘well’ its very case by case

Question 20

in the mcdonell framework, what does it mean for the p to show the fourth element Some other evidence of discrimination in the case.)

Answer 20

usually evidence of similarly situated employees treated differently

Offhand comments, statistical evidence

Question 21

what is the point of the mcdonell framework

Answer 21

Not meant to be an onerous burden but meant to help identify what is goin on

Question 22

whats the basic formula from hicks via factfinder’s disbelief of d’s offered non discrim reason

Answer 22

The factfinder’s disbelief + prima facie = enough to make it to jury trial

Question 23

what is the pretext may approach

Answer 23

that if the employer’s legitimate non-discriminatory reason was disbelieved, this (combined with the prima facie case) was sufficient for the trier-of-fact to rule in the plaintiff’s favor.

Question 24

what is the pretext plus approach

Answer 24

in addition to disproving the employer’s legitimate nondiscriminatory reason, some other evidence of pretext must be produced in the case to show the employer’s discriminatory intent.

More is needed than a simple disbelief of the employer’s articulated reason for the adverse action.

Question 25

what are some tips for employers to aviod an issue in showing a legit non discrim reason (4)

Answer 25

1.Employers must be honest and forthcoming about the rationale for taking adverse action against an employee.

2. Ensure the explanation is clearly determined BEFORE taking adverse action.

3.Document the reason in writing.

4.Remain consistent about the reason from the time it is conveyed to the employee through litigation.

Question 26

what is the key takeaway from reeves

Issue: whether the lower courts should follow a pretext may or pretext plus approach

Is it enough that jury does not believe the D is telling the truth to support the verdict or does p need to show something beyond?

Answer 26

court chooses pretext may

Proof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination.

Question 27

draw a flowchart for mcdonell douglas framework

Answer 27

check it

Question 28

what is direct evidence?

Answer 28

evidence that leaves no leeway for doubt as to whether intentional discrimination occurred

Question 29

do we apply mcdonell to direct evidnce

Answer 29

NO! mcdonell is used only for circmstantial evidnce

Question 30

what is the reed direct evidence test

Answer 30

We look to whether the comments are
1. related to the protected class
2. proximate in time to the terminations /adverse action
3. made by an individual with authority over the employment decision at issue and
4. related to the employment decision at issue

Question 31

under the reed direct evidence test, what does the fourth element mean (related to the employment decision at issue)

Answer 31

did it have to do with THIS P’s specific termination; must relate to ps termination or adverse employment action

Ie doesn’t count is made to you but your friend is fired

Question 32

do you need all four parts of the reed direct evidence test?

Answer 32

yes

Question 33

when a remark or comment does not satisfy the reed direct evidce test, what is it called and what can it be used for

Answer 33

a stray remark

it can still be powerful CIRCUMSTANTIAL EVIDENCE of discrimination that must be analyzed under the McDonnel framework

Question 34

why do we not need to analyise direct evidnece under mcdonell

Answer 34

Where direct evidence is present, this determination of intentional discrimination has already been made, and there is no need to consider the circumstantial evidence

Question 35

what is the key takeaway from pricewaterhouse

case where P (female) was prefroming well but didnt get promotion because of alleged soft skill shortcomings

she sues alleging sex discrim (clear direct discrim case, no need for mcdonell)

“charm school” comment

issue
May an employer who makes an employment decision with mixed motives avoid liability under Title VII of the Civil Rights Act of 1964 by proving, by a preponderance of the evidence, that the same decision would have been made absent the discriminatory motive?

Answer 35

the employer may avoid liability only by proving by a preponderance of the evidence that it would have made the same decision in the absence of the discriminatory animus

Question 36

what are the two affirmative defenses aviable to employers when direct evidence is found

Answer 36

1. BFOQ
2. mixed motive

Question 37

how did congress react to the price waterhouse decsion and its mixed motive

Answer 37

ammened title vii; stated a p could establish a violation by showing that a protected cateory was a MOTIVATING FACTOR for the adverse action, even when another factor also motived the action

Question 38

what is the classice mixed motive situation

Answer 38

where there is both a legit and illegit rationale for the employment decision

Question 39

if mixed motive is shown, what is the result

Answer 39

the employer is not absolved of liability, but the employee can’t get compensatory and punitive damages

Question 40

what is the keytakeaway from desert palace

the one where p (female) was in a fight and she was fired, but the other person involved (male) was not

she had a series of problems w management before the incident, while the male had a clean record

issue: Whether a plaintiff must present DIRECT EVIDENCE of discrimination in order to obtain a mixed-motive instruction under Title VII of the Civil Rights Act of 1964?

Answer 40

direct evidnece is not needed to give a mixed motive instruction

p only needs to present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that “race, color, religion, sex, or national origin was a motivating factor for any employment practice.”

Question 41

create a mixed motive flow chart

Answer 41

check

Question 42

what is the keytakeaway from keelan

Answer 42

the court merges the framework of mcdonell and desert palace into one test:

after the plaintiff has met his four-element prima facie case and the defendant has responded with a legitimate reason for the adverse action, the plaintiff must then offer sufficient evidence to create a genuine issue of material fact either:

1.That the defendant’s reason is not true, but is instead a pretext for discrimination; or
2.The defendant’s reasons, while true, is only one of the reasons for its conduct, and another motivating factor is the plaintiff’s protected characteristic.

Question 43

what is after acquired evidence

Answer 43

when the d takes an adverse action based solely on discriminatory motives, and information later comes to light that would have justified the employers decision?

Question 44

how is after aquired evidence different than mixed motive cases

Answer 44

the timing!

Mixed motive= I have MULTIPLE reasons to fire you;One discriminatory, one not

After acquired= i have a bad reason to fire you at first then LATER i find out a legit reason to fire you

Question 45

what is the key takeaway from Mckennon?

the one where she was fired because of her age, and they later found out at deposition she had stolen confidential papers for protection

issue:Whether an employee discharged in violation of the ADEA is barred from all relief when, after her discharge, the employer discovers evidence of wrongdoing that, in any event, would have led to the employee’s termination grounds

Answer 45

SCOTUS held that an employee discharged in violation of the ADEA is entitled to relief even if the employer subsequently discovers evidence of wrongdoing that would have led to the employee’s termination on legitimate grounds.

Question 46

what is systemic litigation

Answer 46

claims that are brought on behalf of multiple individuals

Question 47

what are the two types of systemic claims and describe them

Answer 47

1. the government (DOJ or EEOC) can bring suit on behalf of multiple individuals alleging alleging discrimination against a single employer
2. Private litigation context
   Occur where many individuals file suit as part of a common claim against an employer

Question 48

is the government required to follow FRCP 23 whne they bring a systemic claim?

Answer 48

no; common class action requirements like numerosity and commonality do not apply to the government

Question 49

are individuals required to follow FRCP 23 when they bring a systemic claim

Answer 49

yes

Question 50

what are the FRCP 23 elements to be able to bring a private litigation systemic claim (4 in all)

Answer 50

1. the class is so numerous that joinder of all members is impactable;
2. there are questions of law or fact common to the class;
3. the claims or defenses of the representiive parties are typical of the claims or defenses of the class; AND
4. the representative parties will fairly and adequately protect the interests of the class

Question 51

in FRCP 23 what does it mean taht the class is 1)numerous

Answer 51

means that you should have 40 or more, def no less than 20

Question 52

in FRCP what does 2)comonailty mean

Answer 52

must be the same common question, so it one cant be age and another one sex

this issue comes up the most

Question 53

what is the key takeaway from walmart v dukes

The named ps in this lawsuit represent 1.5 million members of the certified class
They allege that the company discriminated against them on the basis of their sex by denying then equal pay or promotions, in violation of title vii

ISSUE
Whether the certification of the p class was consistent with FRCP 23(a) and (b)(2)?
More specifically, did they meet the commonality element?

Answer 53

commonality requires a p to show that there are questions of law or fact common to the class ; walmart’s size is to large for the corut to believe there is a common theme of walmart managers excresing their decsrtion

key takeaway: you want to make sure that potential class action meets 23(a); most controversial in employment context would be that COMMONALITY ELEMENT

Question 54

according to walmart, what are two ways to meet the commonality requirement?

Answer 54

1.If the employer used a biased test to evaluate both job applicants and current employees, a class action lawsuit could be filed on behalf of anyone who may have been unfairly affected by the test.

2.Significant proof that an employer operated under a general policy of discrimination conceivably could justify a class of both applicants and employees if the discrimination manifested itself in hiring and promotion practices in the same general fashion, such as through entirely subjective decision making processes.

Question 55

post walmart, what do most courts require the p present to show the commonailty element

Answer 55

1.A uniform company policy;
2.Carried out by top management;
3.That creates both common questions of law and fact, as well as common answers.

Question 56

what is the key takeawy from in re bemis?

The eeoc has brought a tile 7 suit against the employer on behalf of five named, and a class of other black employees of the company
Claims racial harassment of the employees consisting the class

Does the eeoc have to follow the requirements set forth by rule 23?

Answer 56

The Equal Employment Opportunity Commission /DOJ may bring class-action lawsuits without complying with Federal Rule of Civil Procedure 23’s class-action requirements.

The main reason the Supreme Court thought Rule 23 inapplicable to EEOC class actions was that the EEOC is not an exact or even close counterpart to the class representative in a Rule 23 class action.

Question 57

what is the key takeaway from Ricci?

The town threw out the results of a firefighter test after it showed that white firefighters disproportionately were passing in comparison to their black peers

Whether the purpose to avoid disparate impact liability excuses what otherwise would be prohibited disparate treatment discrimination

Answer 57

SCOTUS held that race-based action like the City’s in this case is impermissible under Title VII 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 statute.

Question 58

what good pracitce can employers learn from ricci

Answer 58

teaches employers to make sure the test is good if they are gonna give it

This case gives you a safe harbor if you are implementing a policy or test as an employer

Validation study of the test; make sure the test measures what its supposed to measure

Question 59

what is the prima facie case of retaliation

Answer 59

the plaintiff must establish, by a preponderance of the evidence, that:

1.He engaged in protected activity/conduct;
2.He was subjected to an adverse employment action; and
3.There was a causal link between the protected activity and the adverse action.

Question 60

after a p establhies a prima facie case of retaliation, what is their next step

Answer 60

there is an inference of discrimination and they proceed under the mcdonell framework

Question 61

can you file a retailation claim even if you havent been discriminated against

Answer 61

no, its a seperate cause of action

Question 62

what is the goal of congress enacting the retalaion part of title vii

Answer 62

to avoid chilling of the statute and people pursuing under the statute

Question 63

what does the retailation statute say

Answer 63

You can’t take adverse because someone has

1. Opposed some type of legal activity or if someone makes a change or
2. Participates in any title vii/formal invocation of the federal process

Question 64

what is the first question in terms of a retaliation claim

Answer 64

whether the plaintiff is actually covered by the statute

Question 65

what does thompson tell us about coverage in terms of retaliation cases?

Until 2003, Thompson and his fiancée, Regalado, were employees of North American Stainless (NAS).
In February 2003, the EEOC notified NAS that Regalado filed a charge alleging sex discrimination.
Three weeks later, NAS fired Thompson.

ISSUE; Whether Thompson may sue NAS for its alleged violation of Title VII?

Answer 65

SCOTUS adopted the “Zone of Interest” test to apply to Title VII.
Applying the Zone of Interest test to the facts, the Court concluded that Thompson fell within the interests protected by Title VII.

Question 66

what is the zone of interest test adopted by the court in thompson dealing with coverage under tilte vii retaliation statute?

Answer 66

A plaintiff may not sue unless he falls within the zone of interest sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.

zone of interest is fact specific in terms of if someone is a person aggrieved under the statute

Question 67

beyond showing coverage under retaliaion, what are the two ways for a plaintiff to establish that she was engaged in protected activity under Title VII

Answer 67

1. Opposition Clause: She can claim she was retaliated against because she “opposed” an unlawful practice; or
2. Participation clause: She can allege that she was retaliated against because she “participated” in the more formal enforcement processes of the statute.

Question 68

what does it mean to participate in the formal enforcement process under the participation clause ?

Answer 68

Taking part in the formal measures ie filing a charge of discrimination

The grounds for the charge dont matter it can be as frivolous as ever, bottom line, you are covered under the participation clause

Question 69

what does the oppistion clause cover? what must you do to be covered? what kind of complaint is it covering (internal or eeoc)

Answer 69

This provision applies if an individual explicitly or implicitly communicates to his employer that its activity constitutes a form of employment discrimination.

To fall within the opposition clause, the individual must have a reasonable good faith belief that Title VII has been violated

Its an internal complaint as opposed to external via filing EEOC complaint

Question 70

what is the main diff betweem the particpation clause and the opposition clause

Answer 70

particpation – blanket profection; can be frivioulous, eeoc

opposition – must have good faith beleif, internal communication either explict or implict

Question 71

after a p has established she is covered under the retaliation statute and they engaged in protected activity via oppostion or particpation, what is the next step

Answer 71

she must further demonstrate that she suffered an adverse action.

Question 72

what is the standard of proof to show adverse action in a retailation claim

Answer 72

Standard of proof for adverse action is lower than intentional discrimination

must show

1.a reasonable employee would have found the challenged action materially adverse

2. which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.

Question 73

what is the key takeaway from burlington

White was the only woman working in Burlington Northern’s railroad yard. After she complained of harassment by her supervisor, she was moved from duties as a forklift operator to less desirable duties as a track laborer, though her job classification remained the same

issue: Are these adverse employment actions?

Answer 73

the p must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it might well have dismayed a reasonable worker from making or supporting a charge of discrimination

court reasons less desirable assignments are an adverse action under retaliation

The statute becomes meaningless if the employer can give you a hard time to dissuade them from filing a charge

Question 74

under retailaion are petty slights gonna count as adverse action

Answer 74

no; if you dont get a birthday card; dont get taken out to lunch

Question 75

what is the causation elment in retaltion

Answer 75

The plaintiff must show that the adverse act by the employer was caused by the complaint.

Question 76

how do courts feel about the time between the complaint and adverse action when it comes to causation in a retaliation claim

Answer 76

When the adverse act occurs within months of the employee’s complaint, the courts may be suspicious of timing.

When the adverse act occurs more than a year after the complaint, the timing begins to appear too tenuous.

Question 77

what is the key takeaway from university of tx v nassar

Nassar alleged that Levine was biased against him on account of his religious and ethnic heritage,
Nassar eventually resigned from his teaching position stating that Levine’s harassment was the reason.

Nassar filed suit in District Court alleging two violations of Title VII:

The University’s efforts to prevent the Hospital from hiring him were in retaliation for complaining about Levine’s harassment, in violation of § 2000e-3(a).

ISSUE; Does the retaliation provision of Title VII require a plaintiff to prove that an employer would not have taken an action but for the existence of an improper motive, or does the provision require only proof that the employer had mixed motives for taking an action?

Answer 77

You need but for causation

SCOTUS held that the retaliation provision requires the plaintiff to prove that an employer would not have taken an action but for the existence of improper motives.

There must be a demonstrable causal link between the injury sustained and the wrong alleged.

Question 78

what happens once a p establishes all the elements of a retaliation claim

Answer 78

inference of discrimination is raised.

the mcdonell douglas burden shifting framework ensues

Question 79

draw a flowchart for retaliation claim

Answer 79

check

Question 80

whats the most common way to show pretext

Answer 80

that the offered reason by d is not true

Question 81

if after aquired is proven, what happens to the damages

Answer 81

the damages are limited

Question 82

how is protected conduct, the first element in retaliation, shown

Answer 82

via the opposition clause or the particpation clause

Question 83

what kind of causation is needed for retaliation

Answer 83

but for; no mixed motive cases