Types of Discrimination Claims

Question 1

Types of Claims Most Likely to Be Tested

Answer 1

(1) Individual Disparate Treatment
(2) Systemic Disparate Treatment
(3) Disparate Impact
(4) Failure to Accommodate
(5) Harassment
(6) Retaliation

Question 2

Constructive Discharge

Answer 2

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

Question 3

Claim: Individual Disparate Treatment

Answer 3

Alleges ER INTENTIONALLY DISCRIMINATED against individual EE on basis of a protected characteristic

Question 4

Individual Disparate Treatment: Direct Evidence

Answer 4

Any document or statement which on its face shows that discriminatory criteria served as the basis for the action or decision

Question 5

Individual Disparate Treatment: Circumstantial Evidence

Answer 5

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

Question 6

Prima Facie Case of Disparate Treatment

Answer 6

(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

Question 7

Pretext

Answer 7

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

Question 8

Mixed-Motive Cases

Answer 8

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

Question 9

Claim: Systemic Disparate Treatment

Answer 9

ER has facially discriminatory policy or ER engages in a pattern and practice of discrimination

Question 10

Systemic Disparate Treatment: Discriminatory Policies

Answer 10

Must be FACIALLY discriminatory

Question 11

Systemic Disparate Treatment: Pattern or Practice

Answer 11

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

Question 12

Systemic Disparate Treatment: BFOQ Defense (to facially discriminatory policies)

Answer 12

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.

Question 13

Claim: Disparate Impact

Answer 13

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

Question 14

Disparate Impact: The Impact Itself

Answer 14

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

Question 15

Disparate Treatment: Defense of Business Necessity

Answer 15

ER may show that challenged practice or policy is job-related and consistent with business necessity

Burden of proof on ER

Question 16

Disparate Treatment: Less Discriminatory Alternatives

Answer 16

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

Question 17

Claim: Failure to Accommodate

Answer 17

Arise in context of religious and disability discrimination

Question 18

Failure to Accommodate: Prima Facie Case

Answer 18

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

Question 19

Failure to Accommodate: Reasonable Religious Accommodation

Answer 19

Includes any adjustment to work environment that will allow the EE to practice their religion

Question 20

Failure to Accommodate: Undue Hardship

Answer 20

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

Question 21

Failure to Accommodate: Exemptions

Answer 21

Certain religious employers are exempt from the religious accommodations provision

Question 22

Types of Harassment

2

Answer 22

(1) Quid pro quo

(2) Hostile Work Environment

Question 23

Harassment: Quid Pro Quo

Answer 23

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

Question 24

Harassment: Hostile Work Environment

Answer 24

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

Question 25

Retaliation

Answer 25

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