Prohibitions on Status Discrimination

A: Disparate Treatment

Title VII § 703(a)(1): It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.

Title VII § 703(a)(2): It shall be an unlawful employment practice for an employer to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national original.

McDonnell Douglas v. Green: A Title VII plaintiff can establish a prima facie case for racial discrimination by showing (1) that he belongs to a protected class; (2) that he applied and was qualified for a job for which the employer was seeking applicants; (3) that he was rejected despite his qualifications; and (4) after his rejection, the position remained open and the employer continued to seek applicants. Thereafter, the burden shifts to the employer to articulate a “legitimate nondiscriminatory reason for the employee’s rejection.” If the employer makes such a showing, the employee is given the opportunity to demonstrate that the employer’s stated reason is pretextual.

Texas Dep’t of Community Affairs:

• Plaintiff must establish her prima facie case by a preponderance of the evidence. Establishment of the prima facie case creates a presumption of unlawful discrimination.

  • If the trier of fact believes the plaintiff’s evidence, and if the employer is silent in the face of the presumption, the court must enter judgment for the plaintiff.

• The defendant thereafter has the burden of production of evidence that raises a genuine issue of fact as to whether it discriminated against the plaintiff.

  • Defendant does not have the burden of persuasion, and need not convince the court that it was actually motivated by the proffered reasons.

• Plaintiff bears the ultimate burden of demonstrating that she was the victim of discrimination

St. Mary’s Honor Ctr.: A plaintiff cannot prevail simply by convincing the trier of fact that the defendant’s proffered explanation of its decision is untrue; she has an affirmative obligation not prove “the ultimate fact of intentional discrimination.”

• Proof of a prima facie case and disproof of the employer’s proffered reasons for adverse action permit a trier of fact to make a finding of illegal discrimination, but do not require it to do so, if the trier of fact remains unconvinced that discrimination took place.

Price Waterhouse: When a plaintiff in a Title VII case proves that her gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of evidence that it would have made the same decision even if it had not taken the plaintiff’s gender into account.

1. Burden of Proof in Mixed-Motive Cases. Title VII’s prohibition on discrimination “because of an individual’s sex” means that gender must be irrelevant to the employment decision; it is not necessary that the plaintiff demonstrate that the adverse action would not have occurred “but for” her sex, as long as she demonstrates that an illegitimate factor played a role in the decision. However, an “employer shall not be liable if it can prove that, even if it had not taken gender into account, it would have come to the same decision.” However, a post hoc rationalization is not sufficient; “the employer cannot prevail in a mixed-motive case by offering a legitimate and sufficient reason for its decision if that reason did not actually motivate it at the time of the decision.”

   1. CONCURRENCE (O’Connor): “A disparate treatment plaintiff must show by direct evidence that an illegitimate criterion was a substantial factor in the employer’s decision.”

2. Sex Stereotyping. An employer who makes an employment decision on the basis of a belief that a woman should display certain sex-stereotyped characteristics has discriminated on the basis of gender.

   1. In establishing that gender played a motivating part in an employment decision, a plaintiff in a Title VII case may introduce evidence that the employment decision was made in part because of a sex stereotype

Jespersen: A sex-based difference in appearance standards, without any further showing of disparate effects, does not create a prima facie case of disparate treatment in workplace conditions.

• If grooming standards impose an “unequal burden” on one gender, they may be unlawfully discriminatory

• Sex stereotyping is not responsible for the differential grooming standards here;

  • “There is no evidence in the record to indicate that the policy was adopted to make women bartenders conform to a commonly-accepted stereotypical image of what women should wear.”

  • No suggestion that the standards made it more difficult for women to do the job (contra Price Waterhouse, where a woman was punished for doing something – being aggressive – that was necessary to succeed at the job, because of a sex stereotype about how women should behave)

B: The BFOQ

Title VII, § 703(e): Discrimination on the basis of sex, religion, or national origin is permissible “in those certain instances where [such characteristic] is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.”

Dothard: The BFOQ exception is extremely narrow, but applies where an employee’s “very womanhood” would directly undermine her capacity to perform the job (as in the case of a prison guard position in a male-only prison, where a woman would allegedly be at greater risk of assault simply for being a woman).

• In the usual case, the argument that a particular job is too dangerous...

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