Proving Discrimination and Retaliation

Discrimination or Retaliation

Proof for a Trial

Two Kinds of Proof Direct Evidence Indirect Evidence

Direct Evidence “Direct evidence is evidence that, if believed, proves the fact of discriminatory animus without inference or presumption.” West v. Nabors Drilling USA, Inc., 330 F. 3D 379, 384 n. 3 (5th Cir. 2003).

Smoking Gun

Direct Evidence Admission by manager that reason was discriminatory Document (email from manager saying don’t promote because the person is black) Recording (of manager saying terminate because too old) Eye-witness to manager stating discriminatory reason

Indirect Evidence More commonly known as Circumstantial Evidence Because today it is rare to find an employer who defies the constitution and civil rights laws by openly discriminating against members of a protected class, under Title VII a plaintiff may create a rebuttable inference of intentional employment discrimination by proving the four elements of the McDonnell Douglas test. Ramirez v. Sloss, 615 F.2d 163, 168 (5th Cir. 1980).

McDonnell Douglas Three Steps

McDonnell Douglas Prima Facie Legitimate Reason Pretext

Prima Facie The burden of establishing a prima facie case is not onerous. Tex. Dept. of City Affairs v. Burdine, 450 U.S. 248, 253 (1981). The prima facie case creates an inference and presumption of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

The Prima Facie Case Discrimination Member of Protected Class Qualified For the Position Adverse Employment Action Treated Less Favorably or Replaced by Someone Outside the Protected Class

Protected Class Race Sex National Origin Color Religion Age Disability

Qualified Meets the qualification of job description Not a current performance issue

Adverse Action Terminated Demoted Not Promoted Less Job Responsibilities Hostile Work Environment

Hostile Work Environment Severe Pervasive

Ellerth Faragher Defense Employer expertise reasonable care to prevent and correct promptly Employee unreasonably failed to take advantage of any preventive or corrective opportunities Direct manager issue - vicarious liability

Treated Less Favorably Replacements Comparators

Legitimate Reason Non-Discriminatory One or More Bursts the Presumption Inference Remains

Pretext Preponderance - more likely than not False Not Worthy of Credence Shifting Explanations Subjective Insignificant Inconsistent Reasons Failure to Follow Policy and Procedure

Prima Facie Retaliation Engaged in Protected Activity Adverse Action Causal Link Between Protected Activity and Adverse Action

Protected Activity Opposition/Reporting Participation

Adverse Action Might well dissuade a reasonable person from engaging in protected activity Context matters.

Causal Link Short Time Line (30 days to four months) Retaliatory Statements

Rest of McDonnel Douglas Same for Retaliation Legitimate Non-Discriminatory Reason Pretext

Exceptions to Pretext Insufficient Evidence of Pretext Abundant and Uncontroverted Independent Evidence of No Discrimation

Other Proof Negligence Abduction