Title VII
• Title VII Sec. 703(a)(1): “It shall be an unlawful
employment practice for an employer . . . to fail
or refuse to hire or to discharge any individual,
or otherwise to discriminate against any
individual with respect to his compensation,
terms, conditions, or privileges of employment,
because of such individual’s race, color, religion,
sex, or national origin . . .”
Discriminatory Treatment Claims—
Direct Evidence Cases
• “An employee can prove discrimination through
direct or circumstantial evidence. . . . Direct
evidence is evidence which, if believed, proves
the fact without inference or presumption.”
Jones v. Robinson Property Group, 427 F.3d
987 (5th Cir. 2005)
Discriminatory Treatment Claims—
Circumstantial Evidence
• McDonnell Douglas Corp. v. Green (U.S. 1973)
▫ Facts; issue
• Plaintiff’s prima facie case (burden of proof)
▫
▫
▫
▫
1.
2.
3.
4.
Belongs to racial minority
Applied and was qualified for job
Was rejected
Employer continued to seek applicants
McDonnell Douglas (cont.)
• Employer’s legitimate, nondiscriminatory reason
(burden of production)
• Plaintiff’s showing of pretext (burden of proof)
• Employer prevailed on remand, see Green v.
McDonnell Douglas Corp., 390 F.Supp. 501
(E.D. Mo. 1975), aff’d, 528 F.2d 1102 (8th Cir.
1976)
Discriminatory Treatment Claims—
Circumstantial Evidence
• Furnco Construction Corp. v. Waters (U.S.
1978)
▫ Facts; issue
• Prima facie case (presumption of
discrimination); LNR; pretext
• The Eighth Circuit’s err; “courts may not impose
such a remedy on an employer at least until a
violation of Title VII has been proved”
• Employer use of statistics
Discriminatory Treatment Claims—
Circumstantial Evidence
• Reeves v. Sanderson Plumbing Prods., Inc. (U.S.
2000)
▫ Facts; issue
• Prima facie case?
• LNR: “This burden is one of production, not
persuasion.”
• With evidence of LNR, the presumption of
discrimination “disappears” and “drops out of
the picture”
Reeves (cont.)
• Plaintiff’s pretext showing
• Fifth Circuit’s error: ignored prima facie case
and pretext evidence
• Court: factfinder may (but is not compelled to)
find that prima face case and disbelief of LNR
shows intentional discrimination
• Held: jury verdict for Reeves upheld
Discriminatory Treatment Claims—
Circumstantial Evidence
• McDonnell Douglas “ping-pong” methodology
• Step 1: prima facie case (plaintiff’s burden of
proof)
▫ Member of protected group; qualified; adverse
action; employer seeks to fill at-issue position
• LNR (employer’s burden of production)
• Pretext (plaintiff’s burden of proof)
• Finding of discrimination is permitted but not
compelled
Discriminatory Treatment Claims—
Circumstantial Evidence
• “Boy”; Ash v. Tyson Foods, Inc., p. 68 note 2
▫ See 664 F.3d 883 (11th Cir. 2011) (upholding jury
verdict in favor of plaintiff)
• “Cat’s paw cases,” Staub v. Proctor Hospital, p.
69 note 4
• Tester cases, p. 73, note 15
Discriminatory Treatment Claims—
“Cat’s Paw” Cases
• Discriminating supervisor recommends adverse
action; non-discriminating final decisionmaker
accepts the recommendation
• Held: employer may be liable where supervisor’s
“act is a proximate cause of the ultimate
employment action.” Staub v. Proctor Hosp.
(U.S. 2011)
Discriminatory Treatment Claims
• Single-motive cases
▫ Employer conduct is legal or illegal
• Mixed-motive cases
▫ Employer’s conduct is legal and illegal
Discriminatory Treatment Claims—
Mixed-Motive Analysis
• Desert Palace, Inc. v. Costa (U.S. 2003)
▫ Facts; jury instruction
• Title VII Secs. 703(m): “motivating factor”;
706(g)(2)(B): limited affirmative defense
▫ “‘Demonstrates’ means meets the burdens of
production and persuasion.” Sec. 701(m)
• Held: challenged jury instruction was correct;
plaintiff may rely on direct or circumstantial
evidence
Discriminatory Treatment Claims—
After-Acquired Evidence Cases
• McKennon v. Nashville Banner Publishing Co.
(U.S. 1995)
▫ Facts; not a mixed-motive case
• The ADEA’s and Title VII’s objectives:
deterrence and compensation
• Remedy in case of after-acquired evidence that,
if known, would have resulted in lawful
termination: backpay from date of unlawful
discharge to date of discovery of new
information
Discriminatory Treatment Claims—
Systemic Discrimination
• Teamsters v. U.S. (U.S. 1977)
▫ Facts; issue; retroactive/competitive seniority
• The plaintiff’s prima facie case in pattern-orpractice cases: “racial discrimination was the
company’s standard operating procedure—the
regular rather than the unusual practice.”
▫ Statistics and bolster/buttress evidence
• The employer’s rebuttal
Teamsters (cont.)
• Remedial stage and incumbent applicants
• Teamsters hearings
• Step 1: government must show that alleged
individual discriminatee unsuccessfully applied
for job
• Step 2: employer must demonstrate lawful
reason for rejecting application
Teamsters (cont.)
• Remedial stage and nonapplicants
• Step 1: nonapplicant must show that she was a
potential victim of discrimination and was
deterred from applying because of the
employer’s discriminatory practices
• Step 2: burden shifts to employer to show that
nonapplicant would not have been selected