Employment Discrimination

- Intent to Discriminate- Adverse Action (must be material) - applies to T,C & P- Action Linked to intent to Discriminate

703(a): "because of"- direct evidence- McDonnell-Douglas/Pretext Analysis- Price Waterhouse
703(m) motivating facotr
ADEA standard

1. P alleges discrimination w/ PFC:- in protected class-applied for and qualified for job-rejected (terminated, transfered)-position remained open (or filled by someone outside class= mandatory rebuttable presumption
2. D articulates LNDR (burden of production)
3. P must persuade LNDR is pretextual
if pretext proven, D cant avoid damages

There is no pretext + standard (Reeves)
1) 40+2) otherwise qualified (besides LNDR)3) discharged4) replaced by sufficiently younger worker (doesnt have to be outside class)

NOW APPLIES to section 1983 (mt. healthy)
P has to prove by preponderance that trait is motivating factorD has burden (shifts) to show same decision anyway (liability relieving)
-used to be std for mixed-motives prior to 703m

1. P persuades trait was motivating factor=est. liabilty2. D can show would ahve made same decision anyway (persuasion)--> doesnt relieve liability, only restricts relief
DONT NEED DIRECT EVIDENCE - Costa

- no burden shifting; P must prove BF causation
- mixed motives cases: - don't need direct evidence (costa) - keep PW BF causation standard
Modified McD-D PFC:- P can attack proffered reason (show pretext) OR - ack proffered reason true but real reason discrim (BF)

1. Formal Policy of Discrimination2. Pattern or Practice of Discrimination
with either, need finding of intent

- facially discriminatory- Manhart- no cost justification defense (in any intentional claim)

- facially neutral, but as applied, is discriminatory
- statistical evidence: if 2-3 SDs, b/w actual and expected, by design-anecdotal evidence
burdens:
- P has burden of persuasion to present PFC-D has burden of production (even if P's numbers wrong)- at remedies stage, D has persuasion to prove ach individual was not V of policy

1. Challenge Factual basis on which P's case is predicated - deny formal policy exists or - challenge facts on which P's case based (use diff stats that counter P's)
2. Challenge inference of discriminatory intent statistics raise - Feeney: must act b/c of not in spite of (+ cant bring impact under con) - Sears:
3. Admit Discrimination, but assert recognized defense

1. BFOQ2. Voluntary AA

703e: can hire on basis of religion, sex, national origin when BFOQ is reas necessary to normal op of business (none for race)
THIS IS AN AFFIRMATIVE DEFENSE (burden of persuasion on employer)- Prong 1: requirement must go to job-related skills that go to the essence of the employer's business= doesn't matter if its a good reason (J.C.) -Prong 2: all or nearly all the excluded group can't do job or impossible to tell who can't
Costs come into place when would be ruinous privacy concerns?

After P presents evidence of discrimination (through direct evidence or PFC,
D has burden of production to say pursuant to valid AA plan**not persuasion b/c its not AD-its just not discrim to begin with (LNDR)***
P has burden to persuade AA plan is invalid/pretext
REQ of Valid AA plan:1. societal discrim theory okay: need manifest imbalance in trad'lly segregated job category2. plan must not unnecessarily trammel interests of majority3. no quotas
maybe diversity as compelling interest rather than remedial?

Title VII, ADA, ADEA (diluted), NOT NOT NOT 1981
no jury trials