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Employment Discrimination Law
Proof in disparate treatment cases
Disparate treatment (or intentional
discrimination cases) are proved through the use of either direct or indirect evidence.
Direct evidence is evidence which proves a fact without inference or presumption. For
example, the human resource person says to the applicant, "I think you are the most
qualified applicant, but you are just too old."
In the 1970s, the United States Supreme Court
recognized that "direct evidence" of discrimination was hard to come by.
Therefore, in the case of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
the Supreme Court came up with an alternative method of proof which judges use to decide
which cases get to go to the jury (and which cases get dismissed before trial). The method
of proof is usually referred to as the McDonnell Douglas
The McDonnell Douglas
involves three steps:
The plaintiff must make out a
prima facie case
of discrimination. When courts use the phrase prima facie case, they refer to
evidence which is facially sufficient to make out a case of discrimination. There are
usually four elements needed to establish a prima facie case. The four elements
vary slightly depending upon the type of discrimination action. For our purposes, let's
assume an employee believes that he was wrongfully terminated because of his age. To
establish a prima facie case, the plaintiff must show that:
he is a member of the protected class (for
example, a person suing for age discrimination must be at least 40 years old to be a
member of the class of persons protected by federal age discrimination laws);
he was qualified for the job and met the
employer's legitimate expectations;
he was discharged despite his qualifications
and performance; and
following his discharge, he was replaced by
someone with comparable qualifications who was substantially younger.
The elements of the
prima facie vary
depending upon the type of discrimination case involved (age, disability, national origin,
pregnancy, race, religion or gender). Also, different courts may state the elements of the
facie case slightly differently.
If the plaintiff makes out a
case, then the employer has the burden of producing a legitimate, nondiscriminatory
reason why the plaintiff was fired.
Once the employer articulates a legitimate,
nondiscriminatory reason for firing the plaintiff, then the plaintiff must show that the
reason given by the employer is really just a pretext. For example, the employer
asserts that the employee was terminated because he was late to work ten times in the last
three months. But the plaintiff shows that five other employees (all younger than him)
were also late ten times in the last three months and they were not terminated.
If the plaintiff jumps through these hoops, this
just means that the case goes to the jury and the jury will decide whether the employer
discriminated or not. Remember, the plaintiff is alleging discrimination, the employer is
asserting a legitimate reason for its action -- and it is up to the jury (the finder of
fact) to decide who is telling the truth.
In fact, it is possible for the employer to be
lying about the "legitimate reason" and still have a jury find in favor of the
employer. As an example, let's take an age discrimination case where the plaintiff alleges
he was not hired for a job because of his age.
Two persons apply for a job at the Acme
Corporation. One applicant is 60 years old and the other applicant is 22 years old. The
older applicant is actually more qualified, but the younger applicant is hired. The older
applicant sues and the employer defends on the basis that the younger applicant was better
qualified. The older applicant convinces the jury that the employer's defense is a lie,
but the jury also becomes convinced that the younger applicant was hired because he is a
nephew of the person at Acme in charge of hiring. Even though the employer was lying and
even though this is very unfair to the older applicant, the older applicant was not
discriminated against based on his age.
Employment discrimination laws do not prohibit an
employer from treating an employee unfairly. The laws just prohibit an employer from
treating an employee unfairly based upon the employee's membership in some protected
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