Employment Discrimination

Disparate Treament - 3 part test
1) P has burden of proving a prima facie case of discrimination
2) If P succeeds, burden shifts to D to articulate some legitimate, nondiscriminatory reason for the employees rejection
3) If D meets burden, P must have opportunity to prove by preponderance of evidence that legitimate reasons offered by D were not true, but were pretext for discrimination

Part 3 of the test: Just proving that the employer is lying is not enough to mandate a finding of discrimination; P must show that the reasons are FALSE and that discrimination was the real reason

The use of the term "boy" is not always evidence of racism. The meaning depends on context, inflection, tone of voice, local custom, and historical usage and not racial modifiers like black or white

The strength of P's prima facie case and the probative value of the proof that the Employer's explanation is false are factors that will be considered for determining pretext

MIXED MOTIVE - P must show that gender played a motivating part in the an employment decision, D can avoid liability by showing it would have made the same decision if it hadn't allowed gender to play a part in the decision.

There is no need for direct evidence when attempting to obtain a mixed motive jury instruction - plaintiff need only present sufficient evidence for a reasonable jury to conclude that "race, color, religion, sex, or national origin" was a motivating factor for any employment practice (Judge decides if there is enough evidence).

"Unclean hands" defense does not preclude employee from relief under the ADEA. D attempts to say that since P was stealing documents, D is absolved from their discriminatory practice of age discrimination (Court says NO)

Safety exceptions under BFOQ defense to Title VII is limited to instances in which sex or pregnancy actually interferes with employee's ability to perform the job. Even well intentioned proposals may be discriminatory.

Southwest concedes it discriminates on basis of gender, but defends as a BFOQ permitted under Title VII because it is necessary to maintain its image of female sex appeal and attract male patrons
2 part BFOQ Test (Employers may hire only 1 sex if):
1) Job itself requires workers to be female; and
2) Workers' sex is reasonably necessary to the employers business "essence"

Unwelcome sexual advances, requests for sexual favors and other verbal/physical conduct has the purpose or effect of creating an intimidating, hostile, or offensive work environment

Employer may be subject to vicarious liability for the actions of its employee if those actions create a hostile work environment created by the supervisor with authority over a victimized employee

In negotiating a CBA, unions must attempt to eliminate discriminatory provisions. If the union makes a bona fide attempt to do so, but its proposals are rejected by the employer it will not be liable under Title VII

Balancing Test - employee conduct must be reasonable in light of the circumstances & employees right to run his business must be balanced against the rights of the employee to express his grievances and to promote his own welfare

Retaliation:
1) Statutorily protected expression
2) Adverse Employment Action
3) Causal Link between protected expression and adverse action

Employers may establish tests or degree requirements as criteria for advancement, even if this tends to exclude racial minorities, IF the employers prove that the test/requirements measure employment capabilities