Disparate Treatment
McDonnell Douglass Corp. v. Green
703(a) states that it shall be an unlawful employment practice for an employer to
(1)fail or refuse to hire or to discharge one or otherwise discriminate against any individual with respect to his
compensation or other terms of employment because of such individual’s race, color, religion, sex, or national origin.
1. P proves prima facie case
a. person belongs to a racial minority
b. he applied and was qualified for a job which the employer was seeking applicants
c. despite his qualifications he was rejected
d. after his rejection the position remained open and employer continued to seek applicants from person
of complainant’s qualifications
2. D offers legitimate non-discriminatory reason for the adverse action
3. P shows pretext through various theories/D shows not pretext with evidence in support.
3 Views
1. Historical perspective: based on choosing not to consider certain categories such as race, gender, neutral or
blind to these issues
2. Economic perspective: choosing to consider certain categories of merit, fair because treated equally as to the
same proper criteria
3. Remedial perspective: equality of opportunity, all about creating opportunity; “undoing the past.”
Slack v. Haven
 Discriminatory words and actions are proof of discriminatory intent and direct evidence can be used to show
an intent to discriminate under Title VII.
Furnco
 Under MCD an employer’s hiring procedures do not have to be the method which allows the employer to
consider the qualifications of the largest number of minority applicants, the employer only must articulate
“some legitimate, non-discriminatory reason for the employee’s rejection.” (not an equal opportunity thought,
but more of a color-blind, merit-based theory)
Burdine
 The ultimate burden of persuasion (proof) lies at all times with the plaintiff. The defendant’s burden is never a
burden of persuasion (proof), but a burden of production.
St. Mary’s Honor Center
 Question is not whether the defense to the P’s prima facie case is credible, but whether the D intentionally
discriminated against the P. Proof that the D’s legitimate non-discriminatory reason for its adverse
employment action is false does not entitle P to a directed verdict/summary judgment.
 Once burden of production met (legitimate non-discriminatory reason) the presumption simply drops out of
the picture, the trier of fact then proceeds to decide whether the plaintiff has proved “that the D intentionally
discriminated against him” because of race. The presumption never satisfies the burden of proof.
Baylie v. FRB
 Data showing a small increase in probability of discrimination cannot by itself get a P over the burden of
persuasion threshold, it must be coupled with other evidence. It may be materially relevant to a class claim but
only marginally relevant when an individual P seeks damages. Generalized v. individualized.
 Such evidence (usually proved to show systemic disparate treatment or disparate impact) is usually allowed
for whatever prohibitive value it may have but one might be concerned because its potential for prejudice
exceeds its probative value.
Reeves v. Sanderson Plumbing:
 Whether D’s explanation for its employment decision is pretextual or not is not dispositive of the ultimate
issue which is “whether D presented sufficient evidence that the illegitimate factor motivated D’s employment
decision.”
 It is, however, permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the
employer’s explanation. Other circumstantial evidence is then dispositive.
 The absence of proof other than P’s prima facie case and that D’s proffered reason was untrue does not
entitle D to a directed verdict/summary judgment.”
Mixed Motive (failure to show “because of”)
Price Waterhouse v. Cooper:
1. P proves shows gender was a motivating factor in the decision by a preponderance of the evidence. (prima
facie case)
2. D can then prove that he would have made, beyond a preponderance of the doubt, (not clear and convincing
evidence), that it would have made the same decision even if it had not allowed gender (or another illegal
factor) to play such a role. That it was not the motivating factor. Burden shift present, burden of
proof/persuasion now on the D to prove. Burden shift does not win the case just limits remedy.
Desert Palace, Inc. v. Costa:
 No heightened standard to prove mixed motive, can use direct or circumstantial evidence.
 “but for”: P has entire burden of persuasion, 51% it was the reason.
 “motivation”: P has to show 51% it was a reason, D has 51% to show it wasn’t the reason.

Direct evidence not needed in a mixed motive case, you only need evidence that it was a motivating factor for
P to meet his burden of persuasion as to causation, D can limit the reward by showing because of some other
legitimate reason the outcome would have been the same.
o Level 1: Desert Palace + PWC apply.
o Level 2: Applied
o Level 3: P-gender biases require equality in employment actions. D-adverse employment action was a
result of lack of merit.
Retaliation Claims
Burlington Northern
 Anti-retaliation provision of Title VII forbids employer actions that “discriminate against” an employee (or
job applicant) because he has “opposed” a practice that Title VII forbids or has made a charge, testified, or
participated in a Title VII investigation, proceeding or hearing.
 The words “discriminate against” are not limited to employer actions and harm that concern employment and
the workplace, it also extends to action not related to employment causin harm outside the workplace.
 The level of harm that action must meet is materially adverse. That is it would dissuade a reasonable
person/worker from making or supporting a charge of discrimination. (objective standard)
Rachid v. JIB (Mixed Motive Analysis for ADEA claims)
1. P must demonstrate prima facie case of discrimination.
2. D articulates legitimate, non-discriminatory reason for the decision.
3. P then offers evidence to create issue of fact that
a. Given reason is false and is pretext (mixed motive) OR
b. D’s reason may be true but it is only one of the reasons for the decision and the other motivating factor
is the P’s protected characteristic. (mixed motive)
4. If b. then D may show that they would have made the same decision even if the protected factor had not been
allowed to play a role, by a preponderance of the evidence (burden of proof/persuasion).
Cracker Barrel
 Retaliation claims are available under 1981.
Crawford v. Nashville
 An employee response to internal investigators can serve as the basis for anti-retalitation claims based on
opposition or participation. One doesn’t have to go to the EEOC, they must talk with someone about it.
Class Claims
Systemic Disparate Treatment
1. Employer has announced formal policy of discrimination OR
2. Employer’s pattern of employment decisions reveals a practice of disparate treatment.
 Shift from historical “characteristic blind” conception of equality, statistical disparity concerning opportunity
 Employers rely on merit based conception of equality to deter inference of discrimination, need legitimate
rather than just non-discriminatory reasons, more significant here.
L.A. Department of Water v. Manhart
 Systemic DT is viewed in term of its affect on individuals not a class.
o Cannot look at gen eralized characteristics but instead only on individual characteristics. The statute is
primarily concerned with fairness of individuals versus fairness to classes, this precludes treating
individuals simply as components of a group.
Teamsters
 Statistical evidence and anecdotal evidence may come together to prove a claim of systemic disparate
treatment under a pattern or practice (2).
City of St. Louis
 A P may go to the EEOC to get either a right to sue or the EEOC will file a suit on behalf of the employees.
 Statistical evidence can be significant enough to show a pattern or practice of discrimination in hiring (2)
although Title VII does not impose a requirement that a workforce mimic the population of a city.
 In order to demonstrate a prima facie case of pattern and practice of discrimination, statistics must consider
proper comparable hiring market.
Method of Statistical Proof

Simple Model
o Extreme disparities, the “inexorable zero”
 Complex Model
o Presence/treatment of minorities in relevant labor market
o How same group treated by D employer.
o Comparison between these two.
 Labor market must be determined based on job
 Defined in geographical terms
 Applicant flow statistics and use is an unresolved issue.
 Pro: % may differ from the population
 Con: may distort depending on deterrent effects of prior policies
EEOC v. Dial Corporation
 Systemic DT claims can be proved with statistical and anecdotal evidence. Statistical disparities are significant
if they represent more than two or three standard deviations.
Disparate Impact (Facially Neutral w/ Discriminatory Effects)
The concept of disparate impact tries to remedy things that have an effect of denying equal opportunity.
 Systemic, not individual
 Does not require proof of intent like disparate treatment, only proof of discriminatory effects from a
facially neutral policy.
2 Theories on the intent of DI in Title VII
1. Narrow: Only to prevent hidden discrimination, allows liability where proof of intent difficult to show
[Historical-colorblindness]
2. Broad: Discourage employment practices that disproportionately exclude women and minorities. Wants to
prevent perpetuation of past discrimination. [Remedial-equal opportunity]
Griggs v. Duke Power
 DI functions to removal artificial and arbitrary barriers to employees where the barriers operate to discriminate
on the basis of racial or other impermissible classifications.
 Title VII forbids test that aren’t demonstrably a reasonable measure of job performance that have a
discriminatory effect on a protected class.
 Qualifications should be the controlling factor, a test should measure the person for the job and not the person
in the abstract.
Albermarle
 Title VII prohibits the use of employment test unless they have a manifest relationship to the position of
employment in question.
 Business necessity is key, if an employment practice which operates to exclude minorities/women cannot be
shown to be related to successful performance of a job the practice is prohibited.
 “predictive of or significantly correlated with important elements of work behavior which comprise or are
relevant to the jobs for which candidates are being evaluated”
DI Claim Structure
1. Plaintiff must show facially neutral test selects in a racial pattern significantly different than the pool of
applicants
2. D must then has burden of proof to prove that the policy/test/practice is “job related for the position in
question and is consistent with business necessity.” It must have a “manifest relationship to the
employment in question”
3. P can then prove pretext by showing that “other tests or selection devices, without such an effect would
also serve the employer’s legitimate interest in efficient and trustworthy workmanship.”
Washington v. Davis
 Equal protection is not violated by DI alone, it does not establish a claim for DI, it only protects against
disparate treatment. The impact may be overwhelming enough to show a purposeful act says Stevens.
o Concern that such a standard would be far reaching and raise serious concerns.
Dothard v. Rawlinson
 Under DI one needs to only show a significantly discriminatory pattern. Height and weight requirements did
not significantly correlate with strength which was the bonafide job related quality, excluded women and
lacked job relatedness.
Connecticut v. Teal
 “Bottom-line theory of defense”: employer’s acts of racial discrimination in promotions still render it liable
for racial discrimination suffered by employees barred for promotion even if an appropriate racial balance
resulted.
 Title VII prevents this defense as it guarantees individual respondents the opportunity to compete equally with
white workers on the basis of job-related criteria. (Congress had no intent to give employer’s license to
discriminate against some employees because of race or sex merely because it favorably treats members of the
employee’s group.)
Ward’s Cove Packing
 Percentage of minority workers at different positions is not determinative, you must look at the composition of
the applicants and the broader pool of workers in the area as part of the statistical model.
 Court is skeptical of theory 1.
Adjusts the DI Basic Proof Structure
1. P has to isolate and identify a specific facially neutral employment practice that is responsible for DI
effects.
a. No requirement that challenged practice be essential.
2. D then must show job relatedness for the position in question and consistent with business necessity.
(burden of production)
3. P can then show an alternative method that is equally as effective exists that can avoid the disparate
effects. (means pre-text won’t be granted easily, factors such as cost or other burdens are then taken
into effect)
The CRA of 1991 specifically addresses this decision in Ward’s Cove and redoes the structure.
1. P must isolate and identify specific facially neutral employment practice responsible for effects.
2. D then has the burden of proof (changed, not production) to respond with job relatedness for the
position in question and consistent with business necessity.
3. P then has the burden to show D’s justification is pre-textual, because other alternatives exist.
Ricci
 A refusal to promote by the throwing out of a test raises a question on whether there is a true adverse
employment action.
 A potential DI claim is only a legitimate business justification where there is a strong basis in evidence of DI
liability. Standard comes from EP jurisprudence and is a hard standard to meet. The D would argue a “goodfaith effort to comply.”
 Where an employer discards test results based on race disparity, such action is disparate treatment (against
whites) under Title VII unless the employer can demonstrate a strong basis in evidence that the test carried a
disparate impact.
o Creating equality=discrimination.
o Disparate effects are no longer proof of discrimination, it comes from remedying the effects.
o DI not overruled but instead the employer cannot remedy perceived disparate impact without risking
liability for intentional discrimination. “a rock and a hard place”
Sex Discrimination



Equal Pay Act
“Equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are
performed under similar working conditions.”
Want to correct outdated belief that a man because of his position in society should be paid more than a
woman even though his duties are the same
Prohibits only discrimination in pay not terms or conditions of employment. There are four exceptions.
Corning Glass Works
 P has burden of showing employer pays workers of one sex more than workers of the opposite sex for equal
work.
 Burden of proof shifts to employer to show differential is justified based on one of the 4 exceptions.
 Seniority
 Merit
 Piecemark systems
 Any factor other than sex
The time of shift alone does not create different working conditions under the Equal Pay Act.
Shultz v. Wheaten Glass Co.
 An artificially created job classification cannot keep an employer from the operation of the Equal Pay Act.
The “flexibility” element of the job performance was an artificial creation (sham) for two positions that were
essentially equal work under similar working conditions.
 There is only a requirement that the work be substantially equal and not exactly equal. It forces the D to
submit its own evidence on the issue. This concept should be flexible so as to fulfill the purpose of the statute,
preventing disparities in pay because of minor differences in specific job classifications.
County of Washington v. Gunter
 Barrett Amendment to Title VII brings in 4 defenses to EPA but not the requirement that the work be equal to
their male counterparts to bring a compensation claim. Did not bring in all the restrictive factors of the EPA.
 Interpreting Title VII broadly so as to deprive victims of a remedy without a clear congressional mandate.
AFSCME v. State of Washington
 Evidence that an employee based its compensation scheme on the competitive market, where male-dominated
jobs are compensated at a higher rate than employees in dissimilar female-dominated jobs, is not sufficient to
establish liability under DT or DI theories of Title VII.
 Comparable worth does not afford a basis for recover under Title VII based on an allegation of wage
discrimination.
Geduldig v. Aiello
 SC held that exclusion of risks related to pregnancy did not work to discriminate against any identifiable
group or class in terms of aggregate risk.
 Programs that exclude pregnancy related disability does not constitute discrimination under an EP claim.
o Congress responded by passing the PDA which “prohibited sex discrimination on the basis of
pregnancy.”
Newpork News Shipbuilding v. EEOC
 Title VII extends to males and their dependents, cannot treat a male different “in a manner which but for that
person’s sex would be different.”
 Married male employees received a benefit package for their dependents less inclusive than the package
provided to married female employees.
BFOQ: shall not be unlawful . . . for an employer to hire on the basis of religion, sex, or national origin in those
certain instances where it is a bona fide occupational qualification reasonably necessary to the normal
operation of that particular business or operation
 Does not apply to race or the ADEA
 A possible loophole for employers, college and universities cannot retire tenured faculty without one.
Ex: prison guards physical presence, therapeutic care.
Dothard v. Rawlinson: “Being a male is an acceptable bonafide occupational requirement for contact positions in all
maximum security prisons based on extreme level of danger and propensity for sexual assault.”
International UAV
 A BFOQ must be “occupational” and “objective, verifiable requirements.”
 BFOQs can be a defense to disparate treatment, but must relate directly to the “essence of the business” that
the employer engages in. Harm to a fetus because of lead exposure does not warrant the removal of women
from the workforce, the definition is too narrow to allow a fetal protection policy.
Meritor
 A P may prove a violation of Title VII based on sex by proving that discrimination has created a hostile or
abusive work environment.
 The treatment must be sufficiently severe or pervasive so as to “alter the conditions of the victim’s
employment and create an abusive working environment.”
Oncale
 Prohibition of discrimination based on sex protects men as well as women. It extends to same sex harassment
even though it is not the principal evil Congress was concerned about.
Burlington Northern
 Employer under Title VII applies to an employer with 15 or more full time employees (20 or more hours a
week) and any agent of that employer.
 Ellerton Rule
o An employer lacks defense to vicarious liability when it involved a tangible employment action.
o If not a tangible employment action, an employer has an affirmative defense where
 Employer took reasonable care to prevent such action.
 P failed to take advantage of corrective opportunities.
Jesperson v. Harrah’s Operating Company
 Title VII does not prohibit “separate but equal” treatment of men and women’s grooming and dress
requirements so long as one’s gender is not unduly burdened.
 Disagreement over whether makeup policy unfairly burdens women because of cost, time requirement,
inconvenience, fulfills sex stereotype, garners unwanted advances by other men, objectifies them, highlights
their sexual nature etc. etc.
National Origin
Espinoza
 National origin under Title VII refers to where that person is from or their forbearers came, but there is no
linkage between citizenship and national origin, they are different things.
 Weighing heavily in this interpretation’s favor is fact feds require people be U.S. citizens to hire them.
 An employer policy of hiring only citizens does not violate Title VII’s prohibitions against discrimination
based on national origin.
Spun Steak Co.
Title VII doesn’t protect one’s cultural heritage. The requirement that a bilingual speaker speak only one language not
violative. English only language rules do not “per se” cause a disparate effect under Title VII
Religion
TWA v. Hardison
 “because of [. . .] religion” includes aspects of observance and practice as well as belief unless an employer
demonstrates that he is unable to reasonably accommodate the observance or practice without undue hardship
on the operation of the employer’s business
o Reasonable accommodations does not mean the employer must deny shift changes and job preferences
of some employees in order to accommodate or prefer the religious needs of others.
o Epitome of the Economic equality + seniority/merit system view of Title VII
 While Title VII requires an employer to offer “reasonable accommodation” based on religion an employer is
not required to elevate such accommodation above seniority or merit systems even though such a system may
have discriminatory consequences.
United States v. Board of Education
 There is a compelling state interest in advancing the anti-establishment clause and maintaining this perception
of neutrality fits it. Accommodating the P’s desire to wear her religious garb.

Prohibitions against religious dress in classrooms does not violate Title VII because it cannot be
accommodated without undue hardship.
Affirmative Action
Morton v. Manconi
 Indian Reorganization Act of 1934, which gives special preference to Indians for jobs in the Bureau of Indian
Affairs, was not overturned by Title VII and is not unconstitutional. (not repealed by implication)
Sheet Metal Workers Int’l Union v. EEOC
 Judicially imposed race conscious affirmative action, as a remedy for past egregious discrimination, or as
necessary to heal the lingering effects of discriminatory policies, is permitted under Title VII and is not
unconstitutional.
 This seems to contradict Ritchie because the remedy functions consistent with the broad purposes of the
statute even though the language of the statute suggest that a court would be prohibited in benefitting the
workers of a racial minority who weren’t victims of past discrimination.
 Such a remedy is not always proper but it depends upon the facts of the case.
United Steelworker v. Weber
 50% of spots for new hires reserved for blacks until figure met percentage of blacks in local labor market and
SC says ruling against this plan would violate the aim or broad purpose of Title VII.
 Title VII does not forbid all private, voluntary, race-conscious affirmative action plans.
 There must be a manifest racial imbalance and it doesn’t unfairly trample on the rights of the plaintiff, it does
not require the discharge of white members as their replacement with new black hirees.
Johnson v. Transportation Agency
 Affirmative action plans do not violate Title VII, particularly where they seem to remedy past discrimination
where there is a manifest imbalance of gender or race in a traditionally segregated job.
 Company took into account her gender in choosing to promote her while the candidates were basically equal
they chose to promote her in their effort to adhere to their affirmative action goals.
 Historical/Economic Equality vs. Remedial Equality (balancing competing interest, facts drive inquiry)
Procedures and Remedies under Title VII
Statute of Limitations
 Protects D from exposure to liability over periods of time longer than the statute provides for, often requires
the court to forclose on meritorious legal claims.
 Under Title VII the time period is 300 days in state court or with the state agency (product of balancing
process between legislature and business advocates)
 If not filed in state court or with state agency the period is 180 days .
United Airlines v. Evans
 Seniority system gives present effect to a past act of discrimination. A discriminatory act not the basis of a
timely charge is the legal equivalent of an act that took place before the passage of the act. Mere continuity is
not enough, the question is whether a present violation exists.
 If there is an adverse employment action against a member of a protected class and that person does not file a
claim or charge within the statutory period, any claim for discrimination is lost, even if it has a continuing
effect by lessening the current seniority of the worker when later realized.
Ledbetter v. Goodyear
 180 day filing period prevented her from collecting difference on unpaid paychecks later in the past.
 Each payment functioned as a separate violation of Title VII, not a continuing violation.
 A plaintiff cannot recover for pay discrimination that is the result of intentional discrimination.
o Resulted in the Lilly Ledbetter Fair Pay Act of 2009 which allows a plaintiff to recover for pay
discrimination that is the result of intentionally discriminatory pay decisions that were made outside
the statute of limitations period.
Lewis v. City of Chicago
 When discriminatory hiring decisions are made using a list of results from another violation of Title VII, the
SOL clock resets every time an employer hires someone based on this test on DI claims.
o For DT claims P must show deliberate discrimination within the limitations period but for violations
that don’t need intent no determination needs to be made.
 The EEOC SOL in Title VII DI claims rewinds where a discriminatory test is applied, not merely when it is
adopted.
ATT v. Hulteen
 A seniority system does not violate Title VII if valid as long as it doesn’t discriminate based on sex.
 An employer does not violate the PDA when it pays person’s benefits, considered in part under an old policy
which applied pre-PDA, that gave less retirement credit for pregnancy leave than general medical leave where
such pension payments were in accordance with a bona fide seniority system’s rules.
Albermarle Round 2
 A mere absence of bad faith on the employer’s part does not preclude the award of back pay as remedy for the
plaintiff in Title VII cases.
 If a judge was to limit the remedy to injunctive relief it wouldn’t be enough of a disincentive for the employer
to follow the principles of Title VII. The central purpose of Title VII is to make a P whole.
Franks v. Bonnan Transportation Co.
 706(g) states that that the court may order such affirmative action as may be appropriate which may include
reinstatement with or without back pay.
 Legislative history suggests that Congress intended to give the courts wide discretion in exercising their
equitable powers to fashion the most complete relief possible
 Title VII allows the award of seniority status retroactive to the dates of their employment actions.
Kolstad v. American Dental Association
 For an employer to be liable for punitive damages in Title VII, an employer must know or perceive risk that its
actions will violate federal law, no requirement of egregious misconduct, but employer not liable for punitive
damages if it has made good faith efforts to comply with Title VII.
Christianburg Garment Co. v. EEOC
 The court may allow a prevailing party a reasonable attorney’s fees as part of the costs, and the
commission/U.S. shall be liable for costs the same as a private person.
o Goal 1: P with limited means can bring a meritorious suit
o Goal 2: deter the bringing of lawsuits without foundation
 This may be awarded to a prevailing D upon a finding that the P’s action was frivolous, unreasonable or
without foundation even though not brought in subjective bad faith (hard to prove bad faith).
Section 1981
 Guarantees right to make and enforce contracts [. . .] as enjoyed by white citizens
 Different administrative process, different statute of limitations and 1981 has broader remedies
McDonald v. Santa Fe Transportation Co.
 Both Title VII and 42 U.S.C. 1981 afford protection from racial discrimination in private employment to all
races.
Johnson v. Railway Express Agency (Check Dates)
 Title VII and 1981 are separate, distinct and independent. You are not limited remedy wise and may bring
both, but you must bring the 1981 claim to prevent the SOL from running out.

Since 1981 provides an independent remedy for employment discrimination with its own distinctive
procedures and remedies, the limitations period is determined and applied independently of claims Title VII.
Jett v. Dallas Independent School District (Martin example on slides)
 1983 lets you sue state or local governments when they violate constitutional or federal rights. Different in
damages and difference in that you can’t sue state/local government in 1981.
 “Whoever under color of a statute/ordinance/regulation of any state/territory subjects someone under a policy
or custom to a deprivation of rights is liable under said statute.”
 Provides attorney’s fees but a limit on damages, limit on municipal liability. It governs anything dealing with
state actors but it must be pursuant to a policy or custom adopted by the city or state.
Age Discrimination in Employment Act
 Historical (blind): employer cannot consider age in employment decisions
 Economic (merit-based): considers age only as it relates to needs of a job
 Remedial equality (opportunity): considers age only to remedy disparity in opportunity
ADEA section 623 does not allow an employer to “fair or refuse to hire [. . .] because of such individual’s age.
Covers those at least 40 years of age, but doesn’t cover mandatory 65 age retirement for executives.
O’Connor
 Employee meets the prima facie case if he/she is replaced by a “substantially younger” worker even if the
replacement is over 40.
Anderson v. Baxter Healthcare Corp.
 Just like under Title VII, an ADEA P bears the burden to produce evidence from which a trier of fact can infer
that the proffered reason for discharge is false. General, conclusory evidence will not suffice.
Hazen Paper Company v. Biggins
 Where an adverse action is not “because of” a protected trait, even if correlated to that trait, plaintiff cannot
establish disparate treatment.
 Just like Geduldig even where there is a close correlation the court will not find that the protected trait
motivated the employer’s decision.
Gross v. FBL Services
 A mixed-motive claim does not exist under the ADEA. To establish a DT claim under the plain language of
the ADEA a P must prove that it was the “but-for” cause. No shift of the burden of proof like in a normal
mixed-motive case, it lies at all times with the plaintiff.
 The court doesn’t place the same policy concern on age that is present for race and gender.
Smith v. City of Jackson
 Claims based on DI can be brought under the ADEA although the standard of justification requires only
reasonableness.
o P has prima facie case.
o D then has the burden of persuasion to respond with a reasonable factor other than age
discrimination.
o P then has the burden to show D’s reason pre-textual.
Meacham v. Knolls Atomic Power
 Changes Smith in that D has the burden of proof to respond with a “reasonable factor other than age.”
o P proves prima facie case.
o D has the burden of proof to respond with the decision was based upon a “reasonable factor other than
age.”
 An affirmative defense in the same realm as BFOQs.
Title VII v. ADEA
 DT: burden of proof does not switch in mixed motive cases where age is alleged to be a motivating factor.
 DI D has burden of proof when raising a RFOA defense same as the BFOQ defense.
Western Air Lines v. Criswell (Read age DI hypothetical)
 BFOQs are construed extremely narrowly. They must be :
o Reasonably necessary to a particular business
o Impossible to evaluate on an individualized basis
 For mandatory requirements to be justified under the BFOQ defense it must meet these.
Disability Law
Rehabilitation Act of 1973: applies to federal government, programs and contractors
Americans with Disabilities Act: employers (private or state and local governments) with 15 or more employees may
not discriminate against “qualified individuals with disabilities.”
 Reasonable accommodations may include making features accessible, job restructuring such as schedules
and reassignments, acquiring modified equipment, or changing examinations.
 An employer must make a “reasonable accommodation unless it composes an undue hardship on the
employer’s business.”
o Undue hardship: any action requiring significant difficulty or expense in context of employer’s size,
financial resources and nature/structure of its operation.
o No requirement to reasonably accommodate if that person poses a direct threat to the health and safety
of others.
A person with a disability is one who:
1. has a physical or mental impairment that substantially limits one or more major life activities
a. Physical impairment includes neurological, muscular, respiratory, cardiological, vision, lymphatic,
auditory issues etc. etc.
b. Major life activities include caring for one’s self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning and working.
2. has a record of such an impairment; OR
1. is regarded as having such an impairment
You are deemed “qualified” if a person can perform essential functions of the job with or without
accommodation.
Proof structure
 P had a disability.
 D discriminated against that person based on that disability (failed to provide reasonable accommodations).
Bragdon v. Abbot
 To establish an ADA claim based on the existence of a physical disability, P must prove that she he/she has a
physical/metal impairment that substantially limits one or more major life activities.
School Board of Nassau County v. Arline
 A person suffering fr om a contagious disease can be handicapped within the meaning of section 504 of the
Rehabilitation Act of 1973.
Sutton v. United Airlines
 Mitigation measures count towards consideration of whether one has a disability.
o Court read “substantially limits” as requiring a person be presently, not potentially or hypothetically,
substantially limited in order to demonstrate a disability. No “might, could or would” be substantially
limiting if mitigation measures were not taken.
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For a claimant to qualify under the second disability qualification it is necessary that the covered entity be
mistaken about the individual.
o (1) That one has a substantially limiting impairment that one does not have.
o (2) That one has a substantially limiting impairment when, in fact, the impairment is not so limiting.
When considering the major life activity of “working” the plaintiff must allege they are unable to work in a
broad class of jobs. To meet this definition of a substantially limiting impairment.
Toyota v. Williams
 To meet the definition of substantially limited in performing manual tasks, an individual must have an
impairment that prevents or severely restricts the individual from doing activities that are of central
importance to most people’s daily lives. The impact must be permanent or long-term.
 When assessing “disability,” one must look to tasks in one’s ordinary daily life, not employment related
activites.
2009 ADA Amendments
 Major life activities and major bodily functions extended to include more categories.
 Disability to be construed in favor of broad coverage of individuals to the maximum extent permitted.
 An impairment that substantially limits one life activity is sufficient. Impairment that is episodic/in remission
is a disability if it would substantially limit when active.
 No longer taking into effects ameliorative effects unless it involves eyeglasses.
Southeastern Community College v. Davis
 Section 504 of Rehabilitation Act does not require an education institution to “lower or to effect substantial
modification of standards to accommodate a handicapped person.”
U.S. Airways v. Barnette
 Employers do not have to make an ADA accommodation for disabled persons when such accommodations
conflict with seniority system, unless P can show special circumstances that would make such an
accommodation “reasonable.”
 Based upon Congress’ supposed deference to bona fide seniority systems based on influence of labor unions,
blue-collar base and the reasonable expectations of employees. Special circumstances may include that
exceptions have been made to the system in the past or if it is instituted by the employer instead of union
negotiated.
Chevron v. Echazabal
 The BFOQ affirmative defense standard includes requirement that an individual not pose a direct threat to the
health or safety of other individuals in the workplace unless a reasonable accommodation can be made.
 EEOC regulation that explains the qualification standard may include a requirement that an individual shall
not post a direct threat to the health or safety of the individual or others in the workplace and the SC accepts
this view.
Albertson’s v. Kirkinburg
 Employers can use federal law as a basis for establishing a “job necessity” requirement under the ADA even if
the federal law can be waived in certain circumstances.
o Consistent with the idea that the federal government isn’t so concerned about people with disabilities.