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by Vault Law Editors | March 31, 2009

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Employment discrimination

The writers for even the trashiest daytime soap opera couldn't dream up the kind of mischief that occurs daily in the American workplace. Employment lawyers handle cases involving allegations of overt racism, repeated sexual harassment, and discrimination based on age, religion or disability. Litigating these cases and, on the management side, advising corporate clients how to contain current claims and avoid future claims make up the bulk of the employment litigation practice. Discrimination cases are litigated either as single- or multi-plaintiff lawsuits involving a single employee or a small group of employees, or as class action suits involving a larger number of plaintiffs who all share the same protected characteristic and suffered the same type of damage. For the sake of efficiency, the non-class action cases that involve single or multiple plaintiffs will simply be referred to as "single-plaintiff" cases.

Under Title VII, there are two basic theories under which a discrimination claim can be brought: "disparate treatment" and "disparate impact." In a disparate treatment case, the plaintiff must prove that the employer intentionally discriminated against him based on a protected characteristic such as race, sex or age. In a disparate impact case, there is no need to prove intentional discrimination; the employer can be liable even for seemingly neutral employment practices that disproportionately impact a protected class of employees. Disparate treatment cases are almost always brought as single-plaintiff actions, while disparate impact cases are commonly litigated as class action suits.

Disparate treatment and the single-plaintiff case

In the landmark 1973 case of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Supreme Court laid down a three-step framework that provides the basic template to which nearly all disparate treatment cases conform. Under McDonnell, the plaintiff must first establish a prima facie case of discrimination. In the example of a hiring case, the plaintiff would do this by proving the following four elements: (1) that she is a member of a protected class; (2) that she applied for and was qualified for a job for which the employer was seeking applicants; (3) that, despite her qualifications, she was rejected or suffered some other "adverse employment action"; and (4) that, after her rejection, the position remained open and the employer continued to seek applicants from people with the same qualifications as the plaintiff. In the second step, the burden shifts to the defendant (usually the employer), who must prove that the adverse employment action was taken for legitimate, non-discriminatory reasons. Then the burden falls back on the plaintiff, who must prove that intentional discrimination was the real motive behind the decision at issue.

This framework was applied in the recent Supreme Court case of Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). The plaintiff in Reeves was a 57-year-old manager who was terminated after an audit of his department allegedly revealed that he was not accurately tracking the attendance of hours worked by employees he supervised. The plaintiff brought suit under the ADEA, claiming that he was the victim of age discrimination. The plaintiff made out a prima facie case by establishing (1) that he was in a protected class under the ADEA because he was at least 40 years old; (2) that he was qualified for his position because he had been performing competently in that position for years; (3) that he suffered an adverse employment action because he was terminated; and (4) that the employer hired three people in their 30s to fill his position after he was terminated.

The employer then met its burden on rebuttal simply by alleging that the plaintiff was terminated because of his failure to maintain accurate records. (At this stage the accuracy of the employer's suggested reason is not challenged.) The final burden then shifted back to the plaintiff, who produced substantial evidence that the real motive of his termination was age discrimination. The plaintiff showed that he had continually maintained accurate records during his employment and that any discrepancies were attributable to the company's automated timecard machine rather than the result of his error. The plaintiff also produced specific evidence of age bias by introducing comments made by the supervisor responsible for his termination, including remarks that the plaintiff "was so old [he] must have come over on the Mayflower" and that he "was too damn old to do [his] job." The Supreme Court held that, by undermining the accuracy of the employer's explanation and introducing specific evidence of age bias, the plaintiff produced enough evidence to support the trial jury's finding that the employer unlawfully discriminated against the plaintiff based on his age.

Disparate impact and class action litigation

Class action discrimination cases are likely to be brought under a "disparate impact" theory and begin with the important (and often hotly contested) step of class certification. In class actions brought under such a theory, there exists a three-stage burden-shifting framework similar in structure to the McDonnell Douglas approach. In the first stage, the plaintiff has the initial burden of showing that the employer uses a particular employment practice (such as an aptitude test, educational requirement or other job selection device) which causes a disparate impact on a particular class who share a protected characteristic. This burden is met through detailed statistical analysis of the employer's workforce and/or the employment workforce in the geographic area most appropriate for comparison. (This group is called the "relevant labor market.")

Once the plaintiff (often the Equal Employment Opportunity Commission, as the federal agency responsible for enforcing Title VII) establishes a prima facie case of discrimination through statistics as well as evidence of specific acts of discrimination, the burden shifts to the employer. At this stage, the employer can specifically rebut the plaintiff's showing or it can prove that the challenged practice is closely related to or necessary for the job in question and is consistent with "business necessity."

For example, in the Supreme Court case of Dothard v. Rawlinson, 433 U.S. 321 (1977), the employer's use of minimum height and weight requirements for prison guards was challenged as having a disparate impact on the number of women that qualified for the position. A disparate impact was easily shown because these requirements would exclude about 22 to 33 percent of women in the national workforce (as compared to excluding only about 1 percent of males). In rebuttal, the employer attempted to show that the height and weight requirements were closely related to the physical strength necessary for adequate performance as a prison guard. The argument was ultimately unpersuasive, and the Supreme Court held that the employer should simply devise a test directly measuring strength rather than rely on height and weight requirements as decisive indicators.

If an employer succeeds in establishing that a practice which causes a disparate impact is job-related and consistent with business necessity, the burden then shifts back to the plaintiff. In this final stage, the plaintiff must show that there are less discriminatory but equally effective alternative practices available to the employer.

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