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
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
4.234 Title VII retaliation claims
4.240 Sufficient proof of mixed-motive
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
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
4.412.81 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
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
4.532 Promotion, demotion, and transfer prima facie case
4.533 Other forms of unequal treatment prima facie case
4.533.10 Unequal pay under Title VII
4.533.50 Generic unequal treatment
4.534 Termination of employment prima facie case
4.534.10 Constructive discharge
4.540 Member of protected class prong
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
4.560 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?
4.562.40 Failure to reimburse expenses
4.562.60 Failure to offer severance package
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
4.564 Work environment and opportunities
4.564.30 Denial of
opportunity to temporarily "be in
charge"
4.565 Discipline and evaluations
4.565.20 Suspension or administrative leave with pay
4.565.30 Suspension or administrative leave without pay
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?
4.571.20 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
4.572.20 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
4.575.10 Is temporal proximity, alone, sufficient
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
4.621.30 Preference for awarding
transfers to full-time
employees
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
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
4.731 Employer's honest belief
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
4.743.21
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
4.744.11 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
4.745.31 Applicability
of "cat's paw" or
"rubber
stamp" exception
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
4.747.10 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
4.748.10 EEOC findings sufficient to create jury question?
4.748.20 Employer has right to change employee's duties
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
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