The burden of proof in employment discrimination cases generally lies on the complainant, but when a complainant meets its prima facie case for discrimination, the burden then shifts to the employer to show a non-discriminatory reason for its actions.
There are two main kinds of discrimination cases – disparate treatment and disparate impact. A claim for disparate treatment is that an employer based a decision on prohibited factors and evidence of discriminatory intent is offered. Most employment discrimination cases involve disparate treatment – where a member or members of a protected class are treated differently due to that specific protected status – and the various burdens of proof to be discussed relate to these types of claims. Disparate impact claims are rare and involve charges that the employer’s policies, while not openly or intentionally discriminatory, have an effect of excluded people of a protected class. The proof here is a statistical analysis of the policy’s effects, and mathematical attempt to determine the probability that the imbalance of the workforce was actually caused by that policy and not by chance. For example, a complainant of disparate impact trying to show a racial imbalance of the workforce would need to show that (1) the workforce’s racial composition does not match the qualified labor pool (of applicants or available employees), and (2) that the racial disparity was caused by specific employment practices.
Federal anti-discrimination statutes like the Americans with Disabilities Act ("ADA"), Title VII of the Civil Rights Act of 1964 ("Title VII"), and the Age Discrimination in Employment Act ("ADEA"), cover only those employment decisions based on the enumerated characteristics – race, gender, religion, national origin, age, and disability – and not others that are not usually considered constitutionally protected classes. These statutes do not cover characteristics that may seem equally immutable such as homosexuality / sexual orientation, physical attractiveness, difficult personality, socioeconomic class, etc. The laws cover not only hiring and firing decisions, but also treatment and promotion decisions toward existing employees.
If an applicant was not selected for a position she believes she was most qualified for, and she believed she was no selected due to her sex, national origin, race, and disability, she could file a claim at the EEOC, the executive agency that enforces federal discrimination statutes. Under Title VII, such a Complainant may establish a prima facie case of race, color, age, and sex discrimination regarding a non-selection by showing that: (1) she belongs to a protected group; (2) she applied for and was qualified for the position; (3) she was not selected; and (4) a person who was not a member of her protected group was selected. Bass v. Department of Justice, EEOC 01945322 (Oct. 6, 1995).
The standard of proof for a race, age, or gender-based discrimination complaint also requires that Complainant to prove that her race, age, or gender was a "determinative factor" in the agency's decision to take action against her. Hazen Paper Co. v. Briggins, 507 U.S. 607 at 610-611(1993) "[W]hatever the employer’s decision making process, a disparate treatment claim cannot succeed unless the employee's protected trait actually played a role in that process and had a determinative influence on the outcome." Id.
A complainant alleging disparate treatment must first prove by a preponderance of the evidence a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If this burden is met, the burden of production then shifts to the Agency to articulate a legitimate, non-discriminatory reason for its challenged action. Burdine, 450 U.S. at 254. For example, in a non-selection case, an employer was able to show documents from the interview process which ranked candidates according to their performance during the interview process and the Complainant was ranked third out of five candidates.
When the employer is able to show a legitimate non-discriminatory reason for its decision, the burden shifts back to the complainant to show that the employer’s reason is pretextual. St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This means that the applicant or employee must show that even though the employer has provided an non-discriminatory reason, the reason that they have given is pretend and only being used to cover up their actually discriminatory reason. Pretext arguments are very hard to make and very difficult to prove. A complainant would almost have to present a "smoking gun", like an email from one manager to another, and even then it would need to be pretty specific with respect to their plans to take action against an employee or applicant based on his or her protected status.
Absent direct evidence, it is appropriate to apply the McDonnell Douglas analysis, restated in Burdine. Courts have recognized that the model for establishing a prima face case is flexible. McDonnell Douglas, 411 U.S. at 802, n 13.
Employment discrimination complainants may also bring claims of reprisal or retaliation. In order to establish a prima facie case of reprisal, Complainant must show that: (1) she engaged in protected activity under Title VII; (2) the agency was aware of the protected activity; (3) Complainant was subsequently subjected to adverse action by the agency; and (4) absent other evidence tending to establish retaliatory motivation, the adverse treatment followed the protected activity within such a short period of time that retaliatory motivation can be inferred. Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). Complainant must also show that the relevant management official taking the adverse action was aware of the protected activity. Failure of Complainant to establish this fact is a failure to establish a prima facie case. Peltier v. Secretary of Treasury, EEOC Appeal No. 01983060, (2001). Protected activity might be whistle-blowing (for example, in a financial situations where an employee finds a discrepancy in accounting), or other claims of discrimination or harassment (such as an employee in a wheel-chair who has repeatedly asked for the management to install accessible ramps, an employee who has made sexual harassment claims, or an employee who is hearing impaired being denied an ASL interpreter).
A complainant must meet the four requirements to establish a prima facie case for reprisal, and even if she has established that an employer was aware of her protected activity, courts have uniformly held that in order to establish causality between such activity and an adverse employment action, the temporal proximity must be "very close". O’Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (C.A.10 2001). See also Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (C.A.10 1997) (3-month proximity insufficient); Hughes v. Derwinski, 967 F.2d 1168, 1174-75 (C.A.7 1992) (4-month proximity insufficient). "Action taken twenty months after [protected activity] suggests no causality at all." Clark County School Dist. v. Breeden, 121 S. Ct. 1508, 1511 (2001). In a case at the EEOC, because a complainant’s protected activity occurred in January of 2001 and her non-selection for two different positions occurred two-and-a-half years later in June of 2003, she was found to have failed to establish that her non-selection followed within a short period of time.
The ultimate burden of persuasion remains with complainant on the issue of discrimination. Burdine, 450 U.S. at 256; Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 25 (1978). This burden must be met by a preponderance of the evidence. Id. Then everyone lives happily ever after. Amen.
