1. Proving Discrimination and Retaliation

2. Discrimination or Retaliation

3. Proof for a Trial

4. Two Kinds of Proof
Direct Evidence
Indirect Evidence

5. 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).

6. Smoking Gun

7. Direct Evidence Admission by manager that reason was discriminatory
Document ( 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

8. 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).

10. McDonnell Douglas
Three Steps

11. McDonnell Douglas
Prima Facie
Legitimate Reason
Pretext

12. 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).

13. 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

14. Protected Class
Race
Sex
National Origin
Color
Religion
Age
Disability

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

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

17. Hostile Work Environment
Severe
Pervasive

18. 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

19. Treated Less Favorably
Replacements
Comparators

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

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

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

23. Protected Activity
Opposition/Reporting
Participation

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

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

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

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

28. Other Proof
Negligence
Abduction