Types of Discrimination Claims Flashcards
Types of Claims Most Likely to Be Tested
(1) Individual Disparate Treatment
(2) Systemic Disparate Treatment
(3) Disparate Impact
(4) Failure to Accommodate
(5) Harassment
(6) Retaliation
Constructive Discharge
ER can be charged with adverse employment decision even when EE nominally “quits,” if the ER has made EE’s working conditions so intolerable that a reasonable person would have felt compelled to resign
Claim: Individual Disparate Treatment
Alleges ER INTENTIONALLY DISCRIMINATED against individual EE on basis of a protected characteristic
Individual Disparate Treatment: Direct Evidence
Any document or statement which on its face shows that discriminatory criteria served as the basis for the action or decision
Individual Disparate Treatment: Circumstantial Evidence
Evidence from which discrimination might be inferred
BURDEN SHIFTING FRAMEWORK:
(1) Burden initially on P to establish prima facie case of discrimination (disparate treatment); then
(2) Burden shifts to ER to show legitimate non-discriminatory reason for the adverse action
Prima Facie Case of Disparate Treatment
(1) Member of PROTECTED CLASS;
(2) QUALIFIED for the position;
(3) Suffered ADVERSE EMPLOYMENT ACTION; and
(4) Action occurred under circumstance that RAISE INFERENCE OF DISCRIMINATION
Pretext
IF ER establishes legitimate, non-discriminatory reason for its actions, P can rebut by showing that the non-discriminatory reason is mere pretext for the real, discriminatory reason
Mixed-Motive Cases
ER’s actions were the result of BOTH a legitimate reason and a discriminatory reason
Title VII = P must show discrimination was a SUBSTANTIAL MOTIVATING FACTOR
ADEA = P must show discrimination was BUT FOR CAUSE of adverse decision
ADA = Use either
Claim: Systemic Disparate Treatment
ER has facially discriminatory policy or ER engages in a pattern and practice of discrimination
Systemic Disparate Treatment: Discriminatory Policies
Must be FACIALLY discriminatory
Systemic Disparate Treatment: Pattern or Practice
When ER’s standard operating procedures discriminate against a protected class
Typically proven through statistics showing that the protected class makes up a significantly smaller percentage of ER’s workforce
Systemic Disparate Treatment: BFOQ Defense (to facially discriminatory policies)
ER must prove:
(1) Qualification REASONABLE NECESSARY to the normal operation of the particular business; and
(2) Either:
(a) All or substantially all of the persons in the excluded class would be unable to
perform the duties of the job safely and efficiently; or
(b) Some EEs in the excluded class possess a trait that would preclude safe and efficient job performance, and it is practically impossible for the ER to deal with the class of EEs on an individual basis.
Claim: Disparate Impact
When ER’s FACIALLY NEUTRAL PRACTICE OR POLICY disproportionately and adversely IMPACTS a protected class
Unlike disparate treatment discrimination, no requirement to prove a discriminatory motive in disparate impact cases
Disparate Impact: The Impact Itself
P must show particular practice disproportionately excludes members of the protected class
Four-Fifths Rule: Finds disparate impact when protected group’s selection rate is less than four-fifths of the rate for the group with the highest rate
Disparate Treatment: Defense of Business Necessity
ER may show that challenged practice or policy is job-related and consistent with business necessity
Burden of proof on ER
Disparate Treatment: Less Discriminatory Alternatives
If ER establishes business necessity defense, P can still win by showing alternative policy or practice that could achieve the sane goal without discriminatory effect
Claim: Failure to Accommodate
Arise in context of religious and disability discrimination
Failure to Accommodate: Prima Facie Case
P must show:
(1) Holds BONA FIDE RELGIOUS BELIEF that conflicts with job requirement;
(2) INFORMED ER of belief; and
(3) SUFFERED ADVERSE EMPLOYMENT ACTION
Failure to Accommodate: Reasonable Religious Accommodation
Includes any adjustment to work environment that will allow the EE to practice their religion
Failure to Accommodate: Undue Hardship
ER not required to accommodate EE’s religious beliefs and practices if doing so would impose an undue hardship on ER’s legitimate business interests
Failure to Accommodate: Exemptions
Certain religious employers are exempt from the religious accommodations provision
Types of Harassment
2
(1) Quid pro quo
(2) Hostile Work Environment
Harassment: Quid Pro Quo
Applies ONLY to sexual harassment
Alleged harasser must be a SUPERVISOR that:
(1) Made a sexual advance towards the EE; and
(2) Carried out the threat of a consequence if the sexual advance is refuse
P must prove that an adverse employment action resulted from refusal to submit to advance
ER can be vicariously liable for the actions of its EE supervisor
Harassment: Hostile Work Environment
EE experiences unwelcome and offensive sexual conduct or unwelcome and offensive conduct on account of their status as a member of the protected class
Conduct must be so SEVERE AND PERVASIVE
Environment must be OBJECTIVELY HOSTILE OR ABUSIVE
Must be SUBJECTIVELY PERCEIVED BY P to be abusive
Retaliation
ER may not retaliate against EE for engaging in any of the protected activities under Title VII, the ADA, or the ADEA, including opposing an unlawful employment practice or making a charge, testifying, assisting, or participating in an investigation, proceeding, or hearing under one of the statutes
