Chapter 4 - Proving Disparate Treatment Discrimination

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Disclaimer: The Treatise is based upon federal appellate court decisions from 1996 to 2008. We are currently in the process of updating the Treatise. Until that update is complete, it is possible that certain cases cited in the Treatise may no longer represent current law. ------------------------- Chapter 4 - Proving Disparate Treatment Discrimination Overview 4.100 Introduction 4.200 Mixed-motive (or same decision) cases 4.300 Direct method of proof 4.400 Indirect Method of proof / McDonnell Douglas burden-shifting analysis 4.500 McDonnell Douglas prima facie case 4.600 McDonnell Douglas non-discriminatory reason 4.700 McDonnell Douglas evidence of pretext / jury question 4.800 McDonnell Douglas evidence of discrimination - jury question Detail 4.100 Introduction 4.110 Same actor inference 4.120 Inference that decisionmaker will not act against his or her own protected class 4.130 "Cat's paw" or "rubber stamp" theory 4.131 Origin of the term "cat's paw" 4.140 Disparate treatment is not per se illegal 4.150 Who qualifies as a decisionmaker 4.151 Whether discriminatory animus of committee member is attributable to the committee as a whole [TOP] 4.200 Mixed-motive (or same decision) cases 4.210 Civil Rights Act of 1991 4.211 Whether mixed-motive defense was waived 4.212 Which party controls whether the mixed-motive theory is raised? 4.220 "Direct evidence" not required for mixed-motive cases 4.221 Whether "direct evidence" is still required in ADEA actions 4.230 Anti-discrimination laws where "same action" defense is still a bar to liability 4.231 ADEA claims 4.232 42 U.S.C. § 1981 claims 4.233 42 U.S.C. § 1983 claims 4.234 Title VII retaliation claims 4.240 Sufficient proof of mixed-motive [TOP] 4.300 Direct method of proof 4.310 Confusion between "direct method of proof" and "direct evidence" 4.320 Definition of "direct method of proof" 4.330 Definition of "direct evidence" 4.340 Quantum of proof necessary to prove discrimination with circumstantial evidence 4.350 Quantum of proof necessary to prove discrimination with direct evidence 4.351 Burden of proof shifts to defendant 4.360 Whether statements constitute direct evidence 4.361 Statements by decisionmaker that are remote in time or unrelated to the decision in question 4.362 Statements by non-decisionmakers as direct evidence [TOP] 4.400 Indirect method of proof / McDonnell Douglas burden-shifting analysis 4.410 Overview of McDonnell Douglas 4.411 Definition of circumstantial evidence 4.412 Statutes to which McDonnell Douglas can apply 4.412.10 ADEA 4.412.20 ADA 4.412.30 Equal Pay Act 4.412.40 42 U.S.C. § 1981 4.412.50 42 U.S.C. § 1983 4.412.60 FMLA 4.412.70 Rehabilitation Act 4.412.80 Title VII 4.412.81 Unequal pay claims based on sex 4.413 McDonnell Douglas is not the only means of proving discrimination by circumstantial evidence 4.420 Was McDonnell Douglas altered by Desert Palace v. Costa 4.430 Consideration of prima facie case after trial on merits 4.440 Ultimate burden remains at all times on plaintiff [TOP] 4.500 McDonnell Douglas prima facie case 4.510 Purpose of prima facie case 4.511 Level of proof necessary to establish prima facie case 4.512 Flexibility of prima facie case 4.513 Burden of establishing "similarly situated" at prima facie case verses pretext stage 4.520 Generic prima facie case 4.521 Generic ADEA prima facie case 4.522 Generic pregnancy prima facie case 4.523 Generic race prima facie case 4.524 Generic religious prima facie case 4.525 Generic sex prima facie case 4.530 Prima facie case listed by most common case types 4.531 Pre-employment prima facie case 4.531.10 Failure to hire 4.531.11 ADEA failure to hire 4.532 Promotion, demotion, and transfer prima facie case 4.532.10 Failure to promote 4.532.20 Failure to transfer 4.532.30 Denial of tenure 4.532.40 Demotion 4.533 Other forms of unequal treatment prima facie case 4.533.10 Unequal pay under Title VII 4.533.20 Denial of training 4.533.30 Wrongful suspension 4.533.40 Wrongful discipline 4.533.50 Generic unequal treatment 4.534 Termination of employment prima facie case 4.534.10 Constructive discharge 4.534.20 Reduction in force 4.534.21 Mini-RIF 4.534.30 Wrongful termination 4.540 Member of protected class prong 4.541 Reverse discrimination 4.542 ADEA claims 4.550 Qualified for position prong 4.551 Can the court consider subjective as well as objective criteria? 4.552 Interaction between "qualified for position" prong of prima facie case and evidence of pretext (the third step of McDonnell Douglas) 4.553 What if employer's qualifications are applied more strictly to the plaintiff than to others? 4.553.10 No duty to establish qualified for position prong if employer did not require others to be qualified 4.553.20 If plaintiff was already in the position, the employer normally cannot show that the plaintiff did not meet the objective qualifications for the position 4.554 Employee's perception of own performance (or co-workers perception) 4.554.10 Co-worker as expert witness? 4.555 Employee must be meeting expectations at the time of the adverse action 4.555.10 Whether recent evaluations are sufficient? 4.556 Employee's duty to apply for position 4.556.10 Futile gesture doctrine 4.557 Position must be available 4.557.10 Failure to fill position as evidence of discrimination 4.558 Specific jobs 4.558.10 Professor / academic tenure 4.558.20 Salesperson 4.560 Adverse employment action prong 4.561 Definition of adverse employment action 4.561.10 What if adverse employment action is rescinded? 4.561.20 Whether definition is the same under 42 U.S.C. § 1983? 4.562 Compensation 4.562.10 Denial of pay raise 4.562.20 Denial of bonus 4.562.30 Minimal loss of pay 4.562.40 Failure to reimburse expenses 4.562.50 Leave time 4.562.60 Failure to offer severance package 4.563 Work duties 4.563.10 Denial of transfer 4.563.11 Delay in transfer 4.563.20 Demotion / lateral transfer or reassignment 4.563.21 Transfer to new location 4.563.22 Transfer to different shift 4.563.23 Constructive demotion 4.563.24 Reduction in duties 4.563.30 Denial of tenure 4.564 Work environment and opportunities 4.564.10 Denial of training 4.564.20 Unfulfilled threats 4.564.30 Denial of opportunity to temporarily "be in charge" 4.565 Discipline and evaluations 4.565.10 Negative evaluations 4.565.20 Suspension or administrative leave with pay 4.565.30 Suspension or administrative leave without pay 4.565.31 Suspension without pay, but reinstatement with back pay 4.565.32 Suspension with pay, but never served 4.565.40 Oral or written reprimand (or counseling) 4.565.50 Performance improvement plan 4.566 Termination 4.566.10 Termination, but reinstatement with back pay 4.570 Sufficient evidence of discrimination prong 4.571 Must the person treated more favorably be outside the protected class? 4.571.10 ADEA cases 4.571.20 Reduction in force cases 4.571.30 What if one decisionmaker fires plaintiff and another hires the replacement? 4.571.40 Other exceptions to requirement that replacement not be a member of the protected class 4.572 Definition (or analysis) of similarly situated 4.572.10 Jury question 4.572.20 When is someone "replaced"? 4.572.30 Employee's perception not relevant 4.572.40 Plaintiff is compared to pool of applicants as opposed to the successful applicant 4.572.50 Whether fourth prong requires proof that similarly situated person was treated more favorably? 4.572.60 Plaintiff cannot "cherry pick" her comparators 4.572.70 Difference in supervisors 4.572.80 Miscellaneous examples 4.572.81 Male and female sexual harassers are not similarly situated where female's misconduct does not result in complaints 4.573 Statistical evidence 4.574 Position remained open 4.575 Temporal proximity 4.575.10 Is temporal proximity, alone, sufficient [TOP] 4.600 McDonnell Douglas non-discriminatory reason 4.610 Sufficiency of proffered reason 4.611 Whether "legitimate" and "non-discriminatory" mean the same thing? 4.620 Non-discriminatory reasons 4.621 Job prerequisites 4.621.10 Overqualified 4.621.20 Underqualified 4.621.30 Preference for awarding transfers to full-time employees 4.621.40 "Up-or-out" policy 4.621.50 Non-demotion policy 4.622 Employee conduct 4.622.10 Insubordination or disruptive conduct 4.622.20 Violation of company policy 4.623 Proof of financial distress not required for a RIF to be legitimate [TOP] 4.700 McDonnell Douglas evidence of pretext - jury question 4.710 Evidence of discrimination or pretext may be sufficient to make out a jury question 4.711 Application of Reeves v. Sanderson Plumbing Products, Inc. 4.711.10 Reduction in force cases 4.711.20 Pretext, alone, is sufficient to create jury question 4.712 Employer's business judgment 4.720 Level of proof necessary to establish pretext or jury question 4.721 If employer gives multiple reasons, must employee establish pretext as to all reasons? 4.722 Pretext determination normally jury question 4.723 Pretext determined based on facts as they appeared to decisionmaker 4.730 Definition of pretext 4.731 Employer's honest belief 4.740 Evidence of pretext 4.741 Types of circumstantial evidence 4.742 Proffered reason is suspicious 4.742.10 Inconsistent or changing proffered reasons 4.742.20 Post-hoc or belated identification of reason for adverse employment action 4.742.21 Critical memos prepared after the fact may support finding of pretext 4.742.22 Later elaboration on reasons for adverse employment action 4.742.30 Proffered reason is insufficient motivation 4.742.31 "Insufficient to motivate" is same as "lack of honest belief" 4.742.40 Proffered reason is wrong, unwise or unfair 4.742.41 Proffered reason is reckless or not reasonably informed 4.742.50 Failure to give reason 4.743 Circumstances of adverse action are suspicious 4.743.10 Lack of company documents 4.743.20 Interview issues 4.743.21 Failure to ask all applicants the same questions 4.743.22 Interviewer's notes or recollection 4.743.30 Treatment of pregnant employee 4.743.31 Failure to congratulate pregnant employee 4.743.32 Failure to inquire as to how to accommodate pregnant employee and soon-to-be new parent 4.743.40 Failure to follow company rules or policies 4.743.50 Failure to promulgate hiring and promotion policies 4.743.60 Pre-selection of another candidate 4.743.70 Sudden employer dissatisfaction 4.743.80 Close temporal proximity less probative where employer was merely waiting until employee on leave returned to work before taking action 4.743.90 Request for release 4.744 Disparate treatment 4.744.10 Disparate discipline 4.744.11 Knowledge of decisionmaker 4.744.20 Definition of similarly situated 4.744.21 Plaintiff has burden of proving similarly situated 4.744.22 Whether employees are similarly situated is a fact question 4.744.30 Probationary vs. non-probationary employees 4.744.40 Full-time vs. part-time employees 4.744.50 Supervisor vs. lower-ranked employee 4.744.60 Employee with more seniority may be treated more favorably 4.744.70 Plaintiff cannot ignore similarly situated non-protected employees who were not treated more favorably 4.744.80 Employer's disciplinary practices may change over time, which is not evidence of pretext 4.745 Disparity in qualifications or performance 4.745.10 Employee's or co-worker's perception of qualifications or job performance 4.745.20 Educational level 4.745.30 Evaluations 4.745.31 Applicability of "cat's paw" or "rubber stamp" exception 4.745.32 Prior evaluations 4.745.33 Employer's reliance on more recent performance 4.745.34 Employer's decision not to rely on evaluations in making an employment decision 4.745.40 Employee's failure to pass examination 4.745.41 Employee's failure to pass examination excused by futile gesture doctrine? 4.746 Employer's reliance on subjective reasons 4.746.10 Discretion in selecting a management level employee 4.747 Pretext in a RIF case 4.747.10 RIF where employer is hiring younger employees for other positions 4.747.20 RIF where recent hires are not considered for the RIF 4.747.30 Satisfactory performance may not be evidence of pretext in a RIF 4.748 Miscellaneous issues 4.748.10 EEOC findings sufficient to create jury question? 4.748.20 Employer has right to change employee's duties 4.748.30 Statistical evidence 4.748.31 Racial composition of workforce 4.750 Evidence of pretext may not be sufficient to prove discrimination 4.750.10 Favoritism to paramour, family members or others 4.750.11 Termination due to status as paramour [TOP] 4.800 McDonnell Douglas evidence of discrimination - jury question 4.801 Adverse action because employer does not like employee 4.802 Adverse action due to employee's disparaging remarks or lack of respect for employer's authority 4.803 Affirmative action efforts 4.804 Deviation from company policy 4.805 Evidence another supervisor might have treated the employee more favorable 4.806 Failure to give employee feedback 4.807 General atmosphere or company practice of discrimination 4.807.10 Employer's treatment of other employees 4.808 Influence or leverage over decisionmaker 4.809 Less qualified applicant chosen to save her job 4.810 Preemptive action against employee who is leaving 4.811 Reliance on promotion list that is about to expire 4.812 Statements by decisionmakers and non-decisionmakers [TOP]


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