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CHAPTER 1. GENDER DISCRIMINATION AND SEXUAL HARASSMENT CHAPTER 2. AGE DISCRIMINATION CHAPTER 3. RACE AND NATIONAL ORIGIN DISCRIMINATION CHAPTER 4. DISABILITY DISCRIMINATION CHAPTER 5. RELIGIOUS DISCRIMINATION CHAPTER 6. FAIR LABOR STANDARDS ACT CHAPTER 7. FEDERAL CREDIT UNION ACT CHAPTER 8. FAMILY AND MEDICAL LEAVE ACT CHAPTER 9. CONSTITUTIONAL VIOLATIONS (42 U.S.C. §1983) CHAPTER 10. SECTION 301 BREACH OF CONTRACT/BREACH OF FIDUCIARY DUTY CLAIMS CHAPTER 11. FEDERAL EMPLOYER NEGLIGENCE STATUTES CHAPTER 12. UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT (USERRA) |
Here are the first 14 pages of a 145-page chapter:
Chapter 3
Race and National Origin Discrimination
Authors
Todd J. McNamara
McNamara & Martinez, LLP
Kristina James
Career Law Clerk
Hon. Michael E. Hegarty
United States Magistrate Judge
Contributing Authors
Thomas J. Garland, Jr.
Mulligan & Coleman
Hon. Joe Billy McDade
Chief Judge
J. Alfred Southerland
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
I. INTRODUCTION
A. Title VII Claims
1. Overview
§3:00 Coverage and Scope
§3:10 Procedures
2. Theories of Discrimination
§3:20 Introduction
§3:30 Disparate Treatment
§3:30.10 Indirect/Burden-Shifting Method
§3:30.10.10 Prima Facie Case
§3:30.10.11 Plaintiff’s Burden of Proof
§3:30.10.20 Defense: Legitimate,
Nondiscriminatory Reason
§3:30.10.30 Rebuttal: Pretext
§3:30.10.40 Caution Regarding Use of McDonnell Douglas Burden-Shifting Analysis
§3:30.20 Direct Method
§3:40 Disparate Impact
§3:50 Retaliation
§3:60 Harassment (Hostile Work Environment)
3. Defenses
§3:70 Defenses
4. Damages
§3:80 Damages
B. 42 U.S.C. §1981 Claims
§3:90 42 U.S.C. §1981
II. TITLE VII JURY INSTRUCTIONS
A. Overview
§3:100 “Race Discrimination”
§3:101 Race/Color Discrimination: Pretext
§3:105 Title VII—Law Prohibiting Discrimination
§3:110 “Protected Class—Status”
§3:111 Discrimination by Association
§3:112 Reverse Discrimination
§3:113 Protected Class—Inference
§3:120 “Employer”
§3:130 “Employee”
§3:140 Standard of Proof
§3:150 Plaintiff’s Burden
§3:150.10 Plaintiff’s Burden of Proof—Preponderance of Evidence
§3:150.20 Plaintiff’s Burden of Proof—Preponderance of Evidence—Alternate
§3:160 Continuing Violation
B. Theories of Discrimination
1. Disparate Treatment
§3:170 Evidence of Race Discrimination
§3:170.10 Essential Elements
§3:170.20 Title VII—Discrimination—Disparate Treatment—Race—Fifth Circuit
§3:170.30 Title VII—Discrimination—Disparate Treatment—Color—Fifth Circuit
§3:170.40 Title VII—Discriminatory Intent
§3:180 Discriminatory Animus—Different Treatment
a. Indirect/Burden-Shifting Method
§3:190 Presentation of Proof
§3:191 National Origin Discrimination: Pretext
(1) McDonnell Douglas Instruction Set
(a) Prima Facie Case
§3:200 Prima Facie Case
§3:201 Prima Facie Case—Reverse Discrimination
§3:210 “Qualified for Position”
§3:211 “Qualified for Position”—Failure to Promote
§3:211.10 “Qualified for Position”—Alternate
§3:212 Failure to Promote—Alternate
§3:220 “Adverse Employment Action”
§3:220.10 “Adverse Employment Action”—Alternate
§3:220.20 “Adverse Employment Action”—Alternate 2
§3:230 “Constructive Discharge”
§3:230.10 “Constructive Discharge”—Alternate
§3:230.20 “Constructive Discharge”—Alternate
§3:231 “Constructive Discharge”—“Intolerable”
§3:232 “Constructive Discharge”—Working Conditions
§3:233 Inference of Discrimination—Similarly Situated
(b) Defense: Legitimate, Nondiscriminatory Reason
§3:240 Legitimate, Nondiscriminatory Reason
§3:241 Legitimate Nondiscriminatory Reason—Alternate
(c) Rebuttal: Pretext
§3:250 Falsity of Reason
§3:251 Evidence of Pretext
§3:252 Race/Color Discrimination—Pretext
§3:253 National Origin Discrimination—Pretext
(d) Rebuttal: Motivating Factor
§3:254 Modified McDonnell Douglas Approach
(2) Motivating Factor (Ultimate Issue) Instruction Set
§3:260 Determining/Motivating Factor
§3:261 Motivating Factor—Alternate
§3:261.10 Title VII—Plaintiff’s Burden—Motivating Factor—Alternate 2
b. Direct Method
§3:269 “Mixed Motives”
§3:270 “Mixed Motives”—Proof of Discriminatory Animus
§3:271 “Mixed Motives”—Proof of Discriminatory Animus—Stray Remarks
§3:272 Race/Color Discrimination—Mixed Motives
§3:273 National Origin Discrimination—Mixed Motives
§3:274 Motivating Factor—Mixed Motives Instruction
§3:275 Special Verdict Form—National Origin Discrimination—Mixed Motives Case
§3:276 Special Verdict Form—Race/Color Discrimination—Mixed Motives Case
§3:280 Defense—Same Decision
§3:281 Defense—Same Decision—Retaliation
§3:281.10 Defense—Same Decision—Alternate
2. Disparate Impact
§3:290 Disparate Impact
§3:300 Business Necessity Defense
§3:310 Reasonable Alternative Practice
3. Retaliation
§3:320 Prima Facie Case
§3:320.10 Title VII—Discrimination and Retaliation—Law Prohibiting Discrimination
§3:321 Title VII—Discrimination and Retaliation—Separate Verdicts on Each Claim
§3:322 Applicable Statutory Provision—Title VII Retaliation
§3:323 Title VII—Discrimination and Retaliation—Discriminatory Intent
§3:324 Title VII—Discrimination and Retaliation—Law Prohibiting Retaliation
§3:325 Title VII—Discrimination and Retaliation—Proof of Retaliation
§3:326 Title VII—Discrimination and Retaliation—Proof of Intent
§3:327 Title VII—Discrimination and Retaliation—Right to Make Business Decisions
§3:328 Title VII—Discrimination and Retaliation—Damages—Discrimination
§3:329 Title VII—Discrimination and Retaliation—Damages—Retaliation
§3:330 Protected Activity
§3:331 Protected Activity—Alternate
§3:332 Protected Activity—Opposition Activity
§3:333 Title VII—Retaliation—Law Prohibiting Retaliation
§3:340 “Adverse Action”
§3:343 Adverse Employment Action by Supervisor
§3:350 Causation
§3:351 “Causal Connection” Defined
§3:352 “Motivating Factor” Defined
§3:360 Legitimate, Nondiscriminatory Reasons
§3:361 Title VII—Retaliation—Right to Make Business Decisions
§3:370 Pretext
§3:371 Pretext—Alternate
§3:372 Retaliation—Pretext
§3:373 Retaliation—Mixed Motives
§3:374 Title VII—Retaliation—Proof of Retaliation
§3:375 Title VII—Retaliation—Proof of Intent
§3:376 Retaliation
§3:377 Plaintiff’s Burden of Proof—Preponderance of Evidence
4. Harassment
§3:380 Hostile Work Environment
§3:380.10 Hostile Work Environment—Factors Considered
§3:380.20 Hostile Work Environment—Totality of Circumstances
§3:380.30 Hostile Work Environment—Totality of Circumstances—Alternate
§3:380.40 Harassment—Hostile Work Environment—Severe and Pervasive
§3:381 Harassment by Supervisor Resulting in Tangible Action
§3:381.10 “Tangible Employment Action”
§3:382 Harassment by Supervisor Resulting in No Tangible Action
§3:383 Essential Elements (By Nonsupervisor With No Tangible Employment Action)
§3:384 Affirmative Defense (For Use in Cases With No Tangible Employment Action)
§3:385 Harassment by Co-Worker
§3:385.10 Harassment by Co-Worker—Alternate
§3:385.20 Racial Harassment—Hostile Environment Created by Co-Workers, Customers, Etc.
§3:385.30 National Origin Harassment—Hostile Environment Created by Co-Workers, Customers, Etc.
§3:386 Defendant’s Affirmative Defense
§3:386.10 Effectiveness of Employer’s Response
§3:387 Elements of Claim
§3:388 Racial Harassment
§3:388.10 Racial Harassment—Hostile Environment Created by Supervisors or Defendant Itself
§3:388.20 National Origin Harassment—Hostile Environment Created by Supervisors or Defendant Itself
C. Evidentiary Issues
§3:390 Statements Made in the Workplace
§3:400 Statistics
§3:410 Reduction in Force
§3:420 Replacement by Another Member of Protected Class
D. Defenses
§3:430 Business Judgment
§3:440 Same Actor
§3:450 Bona Fide Seniority System
§3:460 After-Acquired Evidence
E. Damages
§3:470 General Instruction
§3:475 Title VII—Damages—Discrimination
§3:480 Backpay
§3:490 Compensatory Damages
§3:491 Compensatory Damages—Title VII—Alternate
§3:500 Punitive Damages
§3:510 Punitive Damages—No Egregious or Outrageous Behavior Required
§3:520 Punitive Damages—Title VII
§3:530 Title VII—Retaliation—Damages
§3:540 [Reserved]
F. Verdict Forms
§3:550 Title VII—Discrimination—Disparate Treatment—Race—Fifth Circuit
§3:560 Title VII—Discrimination—Disparate Treatment—Color—Fifth Circuit
§§3:570–3:590 [Reserved]
III. 42 U.S.C. §1981 INSTRUCTIONS
§3:600 Race Discrimination—§1981
§3:601 Section 1981 Introductory Instruction
§3:602 Section 1981 Definitions—Race
§3:603 Section 1981 Definitions—Hostile or Abusive Work Environment
§3:604 Section 1981 Definitions—Constructive Discharge
§3:610 Race Discrimination—§1981—Essential Elements
§3:611 Elements of a Section 1981 Claim—Disparate Treatment—Pretext
§3:612 Elements of a Section 1981 Claim—Disparate Treatment—Mixed-Motive
§3:613 Elements of a Section 1981 Claim—Harassment—Hostile Work Environment—Tangible Employment Action
§3:614 Elements of a Section 1981 Claim—Harassment—Hostile Work Environment—No Tangible Employment Action
§3:615 Elements of a Section 1981 Claim—Retaliation
§3:616 Elements of a Section 1981 Claim—Municipal Liability—Custom or Policy
§3:617 Elements of a Section 1981 Claim—Disparate Impact
§3:620 Race Discrimination—§1981—Actual Damages
§3:621 Compensatory Damages—§1981
§3:622 Section 1981 Damages—Compensatory Damages—Alternate—Third Circuit
§3:623 Section 1981 Damages—Backpay—For Advisory or Stipulated Jury
§3:624 Section 1981 Damages—Front Pay—For Advisory or Stipulated Jury
§3:625 Section 1981 Damages—Nominal Damages
§3:630 Race Discrimination—§1981—Nominal Damages
§3:640 Race Discrimination—§1981—Punitive Damages
§3:641 Punitive Damages—Bifurcated Trial—§1981
§3:642 Section 1981 Damages—Punitive Damages—Alternate—Third Circuit
§3:650 Defenses
§3:651 Section 1981 Defenses — Bona Fide Occupational Qualification
§3:652 Section 1981 Defenses — Bona Fide Seniority System
§3:660 Race Discrimination—§1981—Verdict Form
IV. 42 U.S.C. §1983 Instructions
§3:700 Race Discrimination—§1983
§3:710 Actual Damages—§1983
§3:711 Compensatory Damages—§1983
§3:720 Nominal Damages—§1983
§3:730 Punitive Damages—§1983
§3:731 Punitive Damages—§1983
§3:740 Verdict Form—§1983
I. INTRODUCTION
A. Title VII Claims
1. Overview
§3:00 Coverage and Scope
Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), prohibits discrimination in employment on the basis of race, color and national origin. 42 U.S.C. §§2000e et seq. (1997). The law is applicable to both public and private employers, as well as employment agencies and labor organizations.
An employer is defined under Title VII as “a
person engaged in an industry affecting commerce who has fifteen or more
employees for each working day in each of twenty or more calendar weeks
in the current or preceding calendar year.” 42 U.S.C. §2000e(b) (1997).
Excluded from this definition are bona fide tax-exempt private
membership clubs and Indian tribes operating businesses.
The term “employee” means an individual employed
by an employer, with the exception of elected state or municipal
officers or their non-civil servant staffs. Title VII of the Civil
Rights Act of 1964, as amended, §701(f), 42 U.S.C. §2000e(f) (1997). The
term “employees” in Title VII, §701(b), refers to those persons with
whom an employer has an existing employment relationship. Walters v.
Metropolitan Educ. Enters., Inc., 519
The Civil Rights Act of 1991 (“CRA 1991”) amended
Title VII to include
A plaintiff must prove his or her case by a
preponderance of the evidence. McDonnell Douglas v. Green, 411
§3:10 Procedures
A plaintiff must file a complaint with an agency within
300 days of allegedly discriminatory conduct. Bonner v. Guccione,
74 Fair Empl. Prac. Cas. (B.N.A.) 479 (S.D.N.Y. 1997); 42 U.S.C.
§200e-5(e). However, under the continuing violation doctrine,
allegations of conduct occurring prior to the limitations period are
actionable if the complainant can show that they are part of a series of
related acts against the complainant, the latest of which occurs within
the limitations period. To establish a continuing violation, one or more
of the allegedly discriminatory acts must fall within the limitations
period. Hashimoto v. Dalton, 118 F.3d 671, 678-79 (9th Cir.
1997), cert. denied, 118
2. Theories of Discrimination
§3:20 Introduction
Title VII cases generally proceed under one or more of
four theories: disparate treatment, disparate impact, retaliation and
harassment. Under a disparate treatment theory, a plaintiff employee may
prove that an adverse employment action was taken because of his or her
race by showing that race played a motivating role in, or contributed
to, the employer’s decision. McDonnell Douglas v. Green, 411
A plaintiff employee may also bring claims of “retaliation” against an employer for recovery of damages. Under Title VII, an employer may not discriminate against any of its employees or applicants for employment because such individual has opposed any practice made unlawful by Title VII, or because such individual has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or litigation under Title VII. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e-3 (1997); §§3:320 et seq.
Finally, a plaintiff employee may recover for harassment based on race by the employer under Title VII. See §3:380.
§3:30 Disparate Treatment
Under this theory, a plaintiff employee must prove that
an adverse employment action was taken because of his or her race by
showing that race played a motivating role in, or contributed to, the
employer’s decision. McDonnell Douglas v. Green, 411
-
the direct method, which may involve the presentation of either direct or circumstantial evidence of racial discrimination in the workplace, or
-
the indirect or burden-shifting method set forth in McDonnell Douglas and its progeny.
The direct method generally involves cases in which both lawful and unlawful motivations are present in the employer’s decision to take adverse action against an employee. That is, in a “mixed motives” case, the employee generally agrees that both a lawful motive, such as a reduction in force, and an unlawful motive, such as race or national origin, motivated the employer. To prove a claim under a mixed motives theory, the plaintiff must demonstrate that race, color or national origin contributed to or was a motivating factor in the employer’s decision. If proved, the employee may be awarded economic and noneconomic damages, unless the employer can prove it would have made the same decision despite the employee’s race, color or national origin.
In 2003, the Supreme Court issued an opinion in
Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), abrogating Justice
O’Connor’s concurring opinion in Price Waterhouse in which she
concluded that direct evidence was required to invoke a “mixed motives”
jury instruction. Rather, in
However, in the absence of direct or circumstantial evidence under the direct method of proof, the McDonnell Douglas framework (“indirect” or “burden-shifting” method) may be used to establish a rebuttable presumption of racial discrimination upon a finding that a prima facie case has been made by showing a series of circumstances which, if not rebutted, would permit a favorable ruling for the employee on his or her claim of racial discrimination.
In order to rebut this presumption and reestablish the employee’s duty to prove that racial discrimination was in fact a motivating factor in the adverse employment decision, the employer must present evidence showing a legitimate, nondiscriminatory reason for its decision. The presumption then drops out of the equation unless the employee can show that the employer’s asserted neutral reason was actually a pretext for discrimination, or in other words, was not the true reason for its action.
Some courts have interpreted
These two methods of proving discrimination come
into play at both the summary judgment stage and the trial stage. Proof
of discrimination by either of the two methods can be implemented in a
summary judgment motion, whereas at trial, the methods are only
appropriately applied in determining whether the employee is able to
survive a motion for a directed verdict at the close of his case.
§3:30.10 Indirect/Burden-Shifting Method
Since an employer who discriminates is unlikely to leave a ‘smoking gun’ attesting to a discriminatory intent, a victim of discrimination is seldom able to prove his or her claim by direct evidence, and is usually constrained to rely on the indirect/burden-shifting method of proof. Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994)
In an “indirect/burden-shifting” evidence case, the plaintiff employee has the initial burden of establishing by a preponderance of the evidence a prima facie case of discrimination.
§3:30.10.10 Prima Facie Case
The essential elements of a prima facie case are
[St. Mary’s Honor Ctr. v. Hicks, 509
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plaintiff is a member of a protected class
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plaintiff performed his or her job satisfactorily (or who was qualified for a new position);
-
plaintiff suffered an adverse employment action;
-
the circumstances give rise to an inference of discrimination (or retaliation).
An adverse employment action is one that results in discrimination against an individual with respect to his or her compensation, terms, conditions or privileges of employment or that limits, segregates, or classifies employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his or her status as an employee. Title VII of the Civil Rights Act of 1964, as amended, §703(a), 42 U.S.C. §2000e-2(a) (1997). See §3:220. Adverse employment actions include constructive discharge, in which the working conditions become so intolerable that the plaintiff is forced to resign. See §3:230; see also §3:410 and §3:420 for instructions on reductions in force and replacement, respectively.
§3:30.10.11 Plaintiff’s Burden of Proof
In order to prove that Defendant discriminated on the basis of race, Plaintiff must prove by a preponderance of the evidence that she suffered an adverse employment action because of her race. Plaintiff must prove by a preponderance of the evidence that her race was a determinative factor in any employment decision Defendant made which negatively affected Plaintiff’s compensation, terms, conditions or privileges of employment.
Race is a determinative factor if, but for Plaintiff’s race, Defendant would not have made the decision which negatively impacted Plaintiff’s compensation, terms, conditions or privileges of employment.
Comments
Source of Instruction: Skaggs v.
§3:30.10.20 Defense: Legitimate, Nondiscriminatory
Reason
In defending against an employer’s motion for summary judgment, if the employee succeeds in establishing a prima facie case, the employer must then articulate a legitimate, nondiscriminatory reason for the adverse action taken against the employee. The employer’s reason must be designed to meet the prima facie case, and must be sufficient, on its face, to “rebut” or “dispel” the inference of discrimination that arises from proof of the prima facie case. In addition, the employer’s proffered justification must be based on information that it knew and relied upon at the time it decided to take the adverse employment action.
Assuming that a prima facie case is established, the resulting presumption of discrimination is rebutted and eliminated if the employer produces evidence of a legitimate, nondiscriminatory reason for its decision. The employee must then prove by a preponderance of the evidence that the legitimate reasons offered by the employer were a pretext for discrimination.
§3:30.10.30 Rebuttal—Pretext
If the employer produces evidence of a legitimate,
nondiscriminatory reason, the employee must then prove by a
preponderance of the evidence that the legitimate reasons offered by the
employer were a pretext for discrimination.
A plaintiff may raise an inference of discriminatory animus by offering evidence comparing himself or herself to similarly situated individuals who are not protected by Title VII and who are treated more favorably. Morris v. Harris Trust & Savs. Bank, 867 F.2d 1023, 1026 (7th Cir. 1989); Lanear v. Safeway Grocery, 843 F.2d 298, 301 (8th Cir. 1988). See §3:180. A plaintiff may also offer evidence of race-related remarks (§3:390) or statistical evidence (§3:400) to prove discriminatory animus.
§3:30.10.40 Caution Regarding Use of McDonnell
Douglas
Burden-Shifting Analysis
Although included at length in the jury instructions,
most circuits believe that it is not appropriate to instruct the
jury on the
McDonnell Douglas burden-shifting analysis. For example, the Eighth
and Ninth Circuit Courts of Appeals have stated in their model jury
instructions that the jury should not be instructed regarding the
three-step allocation of proof and burdens of McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973) and its progeny. See St. Mary’s
Honor Ctr. v. Hicks, 509
Some of the circuits cautioning against the use of the burden-shifting analysis have interpreted the following excerpt from the Supreme Court’s opinion in United States Postal Svc. Bd. of Governors v. Aikens, 460 U.S. 711 (1983), as well as other Supreme Court dicta, to determine that the burden-shifting analysis is appropriate only in pre-trial proceedings:
Because this [Title VII race discrimination] case was fully tried on the merits, it is surprising to find the parties and the Court of Appeals still addressing the question whether Aikens made out a prima facie case. We think by framing the issue in these terms, they have unnecessarily evaded the ultimate question of discrimination vel non.
The authors, however, acknowledge that treatises on jury instructions are excellent sources for locating the required elements of various claims. Therefore, this portion has been included for use as an additional tool by practitioners desiring a complete examination of the McDonnell Douglas analysis.
§3:30.20 Direct Method
In a “direct” method case, the plaintiff-employee must present either direct or circumstantial evidence that race played a motivating part in the employment decision, even though other nondiscriminatory factors may have played a part (commonly known as a “mixed motives” case). Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003); see also §§3:270 et seq.
If the employee presents such evidence, the
defendant employer may limit the employee’s recovery of damages by
proving, by a preponderance of the evidence, that it would have made the
same decision even if it had not taken the employee’s race into account.
However, the employer may not succeed by offering a legitimate and
sufficient reason for its decision, if that reason did not motivate it
at the time of the decision. See Desert Palace, 539 U.S.
at 97; see also Price Waterhouse v. Hopkins, 490 U.S. 228, 252,
258 (1989) (partially overruled by the Civil Rights Act of 1991; that
is, after the Court ruled that an employer could avoid liability
upon showing it would have made the same decision absent racial animus,
Congress passed the Act, stating, in relevant part, that an employer may
only
limit an employee’s recovery of damages upon such showing).
§3:40 Disparate Impact
Under a disparate impact theory, the employee need not
prove that the defendant employer intended to discriminate. Rather, the
employee must show that an employment practice, which is facially
neutral in its treatment of different groups, in fact falls more harshly
on one group than another and cannot be justified by business necessity.
See Hazen Paper Co. v. Biggins, 507
§3:50 Retaliation
Under Title VII, an employer may not discriminate against any of its employees or applicants for employment because they have opposed any practice made unlawful by Title VII, or because they have made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or litigation under Title VII. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e-3 (1997). For instructions, see §§3:320 et seq.
Former employees are included within the coverage
of §704(a), Title VII’s retaliation provision. Robinson v. Shell Oil
Co., 519
To demonstrate a prima facie case of retaliation, an employee must show:
-
[he/she] engaged in statutorily protected activity,
-
[he/she] suffered an adverse employment action, and
-
a causal link existed between the protected activity and the adverse action.
See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3rd Cir. 1996; Karpel v. Inova Health Sys. Servs., 134 F.3d 1222, 1228 (4th Cir. 1998).
“An adverse action” includes employer actions that
are materially adverse to a reasonable employee or job applicant; that
is, the action must be harmful to the point that it could well dissuade
a reasonable worker from making or supporting a charge of
discrimination.
If the employee succeeds, the burden shifts to the employer to produce a legitimate, nondiscriminatory reason for the adverse action. The McDonnell Douglas/Burdine discrimination analysis regarding legitimate, nondiscriminatory reasons applies here as well.
If the employer successfully articulates a legitimate, nondiscriminatory reason, the plaintiff then bears the burden of showing that the employer’s proffered reason is pretextual. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3rd Cir. 1996).
§3:60 Harassment (Hostile Work Environment)
A plaintiff employee may recover for harassment based on
race by the employer under Title VII. The employee must prove that he or
she has suffered a “hostile work environment” by showing [Harris v.
Forklift Sys., Inc., 510
-
The employee is a member of a protected class;
-
He or she was subjected to harassment, either through words or actions, based on race;
-
The harassment had the effect of unreasonably interfering with the employee’s work performance and creating an objectively intimidating, hostile, or offensive work environment; and
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There exists some basis for liability on the part of the employer.
Under the third prong, the harassment must be
sufficiently severe or pervasive to alter the conditions of the
plaintiff’s employment and create an abusive working environment. That
is, conduct must be severe or pervasive enough to create an environment
that a reasonable person would find hostile or abusive. Likewise, the
victim himself or herself must perceive the environment to be abusive,
demonstrating that the conduct has actually altered the conditions of
the victim’s employment.
See Harris, 510
The Supreme Court recently ruled on employer
liability in harassment cases under Title VII. In two companion sexual
harassment cases,
Faragher v. City of Boca Raton and Burlington Indus. v. Ellerth,
the Court determined that employers are vicariously liable for the
sexual harassment by a supervisor which results in a tangible employment
action, such as discharge, demotion or undesirable reassignment, to the
plaintiff, historically characterized as quid pro quo harassment.
However, if the harassment does not result in a tangible employment
action, or is not the quid pro quo type, the employer may raise
an affirmative defense consisting of two elements [Faragher v. City
of Boca Raton, 118 S. Ct. 2275, 2293 (1998); Burlington Indus.,
Inc. v. Ellerth, 118
-
the employer must show by a preponderance of the evidence that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and
-
the employer must show by a preponderance of the evidence that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
Some courts have already applied the standards of Faragher and Ellerth to harassment cases based on race discrimination under Title VII. See, e.g., Livingston v. Adirondack Beverage Co., 141 F.3d 434 (2d Cir. 1998) (holding that a supervisor’s use of the term “spic” three times to an Hispanic employee was sufficient to create a hostile environment); Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581 (5th Cir. 1998) (applying Faragher and Ellerth to a involving the discharge of a white female employee due to her romantic relationship with a black male employee); Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264 (10th Cir. 1998) (holding that the standards for hostile-environment racial harassment are the same as those for hostile-environment sexual harassment).
Jury Instructions: For instructions on harassment, see §3:380.
3. Defenses
§3:70 Defenses
Employers may utilize a variety of defenses to Title VII actions. The employer may challenge one or more elements of the employee’s prima facie case. Frequently, the element of the prima facie case requiring a showing that the employee was performing his or her job in a reasonably satisfactory manner implicates the legitimate, nondiscriminatory reason being offered by the employer to justify its employment decision, and it would seem more prudent to proceed directly to any evidence of pretext. However, some circuits hold that the initial stages of the McDonnell Douglas analysis must nevertheless be addressed, and the court must find that a prima facie case has been established prior to considering the proffered legitimate, nondiscriminatory reason for the employment decision.
As stated previously, an employer may proffer a legitimate, nondiscriminatory reason for its adverse employment action taken against an employee in response to that employee’s prima facie case. If the employee is unable to show that the reason is mere pretext for the true discriminatory reason, then the claim may be dismissed.
However, where the employee presents evidence suggesting pretext, the employer may rebut the employee’s evidence, thus dispelling any inference of intentional discrimination. For example, an employer may show that, where the same individual both hired and fired a plaintiff employee and the termination occurred shortly after hire, a strong inference would exist that racial discrimination was not a determining factor in the termination. Moreover, good faith errors in an employer’s business judgment are not, in themselves, evidence of race discrimination. Furthermore, an employer may at least limit an employee’s remedies by bringing “after-acquired” evidence of an employee’s wrongdoing that would have led the employer to terminate the employee had it known of the wrongdoing during the employee’s tenure.
In addition, an employer may rebut an employee’s evidence of alleged discrimination by asserting the affirmative defenses set forth in Title VII. For example, it is not unlawful for an employer to hire and employ employees on the basis of national origin in those instances where national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. See Section 703(e) of Title VII, 42 U.S.C. §2000e-2(e). Moreover, the employer may show that it applied different standards of compensation, or different terms, conditions or privileges, pursuant to a bona fide system of seniority, merit or other non-discriminatory factor (i.e., quality or quantity of work, location), provided that such differences are not the result of an intention to discriminate.
Jury Instructions: For instructions on defenses, see §§3:430 et seq.
4. Damages
§3:80 Damages
Under Title VII, if the factfinder determines that the defendant employer has intentionally engaged in or is intentionally engaging in an unlawful employment practice, the factfinder may award backpay to the plaintiff employee, payable by the employer responsible for the unlawful employment practice.
Moreover, if the factfinder determines that the defendant employer engaged in intentional discrimination or retaliation, the factfinder may award the plaintiff employee compensatory damages for “future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses.” However, compensatory damages do not include backpay, interest on backpay, or any other type of relief authorized under §706(g) of the Civil Rights Act of 1964.
Finally, the plaintiff employee may recover punitive damages under Title VII against a defendant employer (other than a government, government agency or political subdivision) if the plaintiff demonstrates that the defendant engaged in the discriminatory practice with malice or with reckless indifference to the federally protected rights of the aggrieved individual.
The employer’s backpay liability for unlawful discrimination under Title VII cannot accrue from a date more than two years prior to the filing of a charge with the Equal Employment Opportunity Commission. However, if the factfinder determines that the defendant employer engaged in unlawful retaliation against the plaintiff employee, backpay liability accrues from the date of the adverse employment action.
Jury Instructions: For instructions on damages, see §§3:470 et seq.
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