John F. Myers, Attorney at Law


Title VII of the Civil Rights Act of 1964 makes
it illegal for an employer to discriminate in
the workplace on basis of race, sex, national
origin religion,
origin,
religion or national origin
origin.
In McDonnell Douglas v.
v Green, 411 U
U.S.
S 792
(1973) the Supreme Court set forth a model
in which an employee may prove workplace
discrimination through the use of
circumstantial/indirect evidence.

[T]he critical issue before us concerns the
order
off prooff in
d and
d allocation
ll
ti
i a private,
i t
non-class action challenging employment
g g of Title VII
discrimination. The language
makes plain the purpose of Congress to
assure equality of employment opportunities
and to eliminate those discriminatory
practices and devices which have fostered
racially stratified job environments to the
di
d
i
i citizens.
ii
G
i
disadvantage
off minority
Griggs
v.
Duke Power Co., 401 U.S. 424, 429 (1971).




As noted in Griggs, supra:
Congress did not intend by Title VII, however, to guarantee
a job to every person regardless of qualifications. In short,
the Act does not command that any person be hired
simply
i
l b
because h
he was formerly
f
l the
th subject
bj t off
discrimination, or because he is a member of a minority
group. Discriminatory preference for any group, minority
or majority, is precisely and only what Congress has
proscribed.
b d What
h is required
db
by C
Congress is the
h removall off
artificial, arbitrary, and unnecessary barriers to
employment when the barriers operate invidiously to
discriminate on the basis of racial or other impermissible
p
classification.
Id. at 430-431.


There are societal, as well as personal, interests
on both
The
b h sides
id off this
hi equation.
i
Th broad,
b
d
overriding interest, shared by employer,
employee, and consumer, is efficient and
trustworthy workmanship assured through fair
and racially neutral employment and personnel
decisions In the implementation of such
decisions.
decisions, it is abundantly clear that Title VII
tolerates no racial discrimination,, subtle or
otherwise.Id. at 430-431. (Emphasis added.)
McDonnell Douglas, Id. at 800-801.

Disparate Impact
 Does the employer use a particular employment practice that has a
disparate impact on the basis of race, color, religion, sex, or national
origin? For example, if an employer requires that all applicants pass a
physical agility test, does the test disproportionately screen out women?
Determining whether a test or other selection procedure has a disparate
impact on a particular group ordinarily requires a statistical analysis.
 If the selection procedure has a disparate impact based on race, color,
religion, sex, or national origin, can the employer show that the selection
procedure is job-related and consistent with business necessity? An
employer can meet this standard by showing that it is necessary to the
safe and efficient performance of the job. The challenged policy or
practice
ti should
h ld th
therefore
f
b
be associated
i t d with
ith th
the skills
kill needed
d d tto perform
f
the job successfully. In contrast to a general measurement of applicants’
or employees’ skills, the challenged policy or practice must evaluate an
individual’s skills as related to the particular job in question.
 If the employer shows that the selection procedure is job-related and
consistent with business necessity,
necessity can the person challenging the
selection procedure demonstrate that there is a less discriminatory
alternative available? For example, is another test available that would be
equally effective in predicting job performance but would not
disproportionately exclude the protected group?
 Title VII prohibits intentional discrimination based on race,
color, religion, sex, or national origin. For example, Title VII
forbids a covered employer from testing the reading ability
of African American applicants or employees but not testing
the reading ability of their white counterparts. This is called
disparate treatment”
treatment discrimination.
discrimination Disparate treatment
“disparate
cases typically involve the following issues:
 Were people of a different race, color, religion, sex, or
national origin treated differently?
 Is there any evidence of bias, such as discriminatory
statements?
 What is the employer’s reason for the difference in treatment?
 Does the evidence show that the employer’s
employer s reason for the
difference in treatment is untrue, and that the real reason for
the different treatment is race, color, religion, sex, or
national origin?




Simply stated,
stated the McDonnell Douglas test provides:
A plaintiff must first establish a prima facie case
by a preponderance of the evidence, i.e. allege
f t that
facts
th t are adequate
d
t to
t supportt a legal
l
l claim.
l i
The burden of p
production shifts to the employer,
p y ,
to rebut this prima facie case by "articulating
some legitimate, nondiscriminatory reason for
the employee’s
employee s rejection.
The employee may prevail only if he can show
th
l
’ response iis merely
l a pretext
t t
thatt th
the employer’s
for behavior actually motivated by discrimination.

(1) she was a member of a protected class;

(2) she suffered an adverse employment action;

(3) she was qualified for the position she lost; and

(4) she was replaced
p
by
y someone outside the p
protected class,,
or that "a comparable non-protected person was treated
better."

McDonnell Douglas v. Green, 411 U.S. at 802.


Once the employee establishes a prima facie case of
discrimination by a preponderance of the evidence, a
rebuttable presumption of discrimination exists
exists. See,
See
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
254 (1981). (The rebuttable presumption is justified
because if a p
prima facie case is demonstrated,, the most
likely and legitimate reasons for terminating an
employee are eliminated.)
"The burden of establishing a prima facie case of
disparate treatment is not onerous." Burdine, 450 U.S.
at 253. Establishment of a prima facie case creates an
inference that the employer acted with discriminatory
intent. Id. at 254.


The employer must also articulate reasons that are clear
and specific enough to give the employee a fair
opportunity to respond to the third step in McDonnell
Douglas framework. McDonnell Douglas, id., at 803.
. In Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. at
253 the Supreme
p
Court held that once the employer
p y
produced admissible evidence of the reasons for the
adverse action taken against the employee, the prima
facie case is rebutted. Id., at 255. This burden of
production is satisfied when the employer’s proffered
reason “raises a genuine issue of fact as to whether it
discriminated against the employee.”
employee. Id., at 254.


The employee must be given a full and fair opportunity
to demonstrate by competent evidence that the
presumptively valid reasons for the adverse
employment action were, in fact, a cover-up for a
discriminatory discrimination. McDonnell Douglas at
805.
805
“A plaintiff’s prima facie case, combined with sufficient
evidence that the employer
employer’s
s asserted justification is
false, may permit the trier of fact to conclude that the
employer unlawfully discriminated.” Reeves v.
Sanderson Plumbing Prods., Inc., 528 U.S. 133, 148
(2000)
(2000). The employee does not have to produce
additional evidence beyond the prima facie case and
credible pretext evidence to sustain a finding of
discrimination. Id., at 148.



Demonstrate that employees, not within his protected
class status, involved in conduct of comparable
seriousness were nevertheless not disciplined or retained.
The correct inquiry in determining whether a defendant's
reason is pretextual is to determine if the employer "in fact
fired [the employee] for this reason
reason." Jackson v
v. RKO
Bottlers of Toledo, Inc. (6th Cir.1984), 743 F.2d 370, 378
cert. denied, 478 U.S. 1006, 106 S.Ct. 3298, 92 L.Ed.2d
712 (1986).
Pretext is shown when the plaintiff establishes that the
employer's proffered reason for the discharge simply is
not worthy of belief. Texas Dept. Community Services v.
Burdine,(1981), 450 U.S. 248, 256, (1981); Kline v.
Tennessee Valley Authority, ( 6th Cir. 1997), 128 F.3d
337,342-343.



In Reeves v. Sanderson Plumbing Products, Inc., 120 S. Ct. 2097
(2000) (Syllabus 1), the U.S. Supreme Court held that proof that
an employer's explanation for a challenged job action is
"unworthy of credence" is one form of circumstantial evidence of
i
intentional
i
l di
discrimination
i i
i
that
h ""can b
be quite
i persuasive."
i "
In appropriate circumstances, the trier of fact can reasonably
y of the explanation
p
that the employer
p y is
infer from the falsity
dissembling to cover up a discriminatory purpose. Such an
inference is consistent with the general principle of evidence law
that the fact finder is entitled to consider a party's dishonesty
about a material fact as "affirmative evidence of guilt." Id. at
2108 (internal
(i
l citations
i i
omitted).
i d)
In drawing such inference, the fact finder must be able to
of the evidence,, that
conclude,, based on a preponderance
p p
discrimination was a determinative factor in the employer's
actions; simply disbelieving the employer is insufficient. Id. at
146-47.


If an employer takes an adverse employment action
against an employee for a discriminatory reason and
later discovers a legitimate reason which it can prove
would have led it to take the same action, the
employer is still liable for the discrimination, but the
relief
li f that
h the
h employee
l
can recover may be
b limited.
li i d
McKennon v. Nashville Banner Publishing Co., 513
U.S. 352 (1995).
In general, the employee is not entitled to
reinstatement or front pay, and the back pay liability
period is limited to the time between the occurrence
of the discriminatory act and the date the misconduct
justifying the job action is discovered. McKennon,
513 U.S. at 361-62.


When direct evidence of discriminatory bias, motive
or animus is presented by a Plaintiff the defendant
must prove, by a preponderance of the evidence, that
it would have taken the same action even if (Plaintiff)
were not a member of a protected class. Price
Waterhouse v. Hopkins
p
, 490 U.S. 228 ((1989).
)
Under the "mixed motive" analysis, in a direct
evidence case,
case the plaintiff need not show that the
unlawful reason was the only reason for the action.
Plaintiff need only show that his or her protected
class status was a motivating factor in the employer’s
employer s
decision to discipline and discharge, even if not the
most important factor motivating the firing.


The plaintiff in a disparate treatment case need only prove that
membership in a protected class was a motivating factor in the
employment decision, not that it was the sole factor. If the
employer proves that it had another reason for its actions and it
would have made the same decision without the discriminatory
factor, it may avoid liability for monetary damages,
reinstatement or promotion. The court may still grant the
plaintiff declaratory relief
relief, injunctive relief
relief, and attorneys'
attorneys fees
and costs. 42 U.S.C. 2000e-5(g)(2)(B)(i).
Direct evidence of discrimination is not required for a plaintiff to
obtain a mixed
mixed-motive
motive jury instruction under Title VII
VII. The
starting point for this Court's analysis is the statutory text. See
Connecticut Nat. Bankv. Germain, 503 U.S. 249, 253-254. Where,
as here, the statute's words are unambiguous, the judicial inquiry
is complete
complete. Id
Id., at 254
254. Section 2000e-2(m)
2000e 2(m) unambiguously
states that a plaintiff need only demonstrate that an employer
used a forbidden consideration with respect to any employment
practice. Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003)