Title VII

1. Title VII • Prohibits discrimination based on race, sex, religion, Nat. origin • Enforced by the EEOC and charging party required to exhaust administrative remedies before file lawsuit • Plaintiff’s may seek to prove unlawful action by direct action or circumstantial evidence

2. Circumstantial Evidence • Indirect evidence • McDonald Douglas Burden Shifting Analysis • The legitimate non-discrimination reason with key

3. Types Discrimination Claims • Disparate treatment • Disparate impact • Harassment • Retaliation

4. Disparate Treatment • Most common – employee alleges intentional discrimination based on membership in protected class • Must prove discriminatory animus • Direct or circumstantial evidence

5. Disparate Impact • Employer policy neutral on its face but has discriminatory impact • Usually brought by class of person adversity affected by employer policy or practice • Example: Hiring policy that all firefighters need to be 6’ tall

6. Harassment • Can be based on link to any protected class – race, sex, national origin, religion, age or disability • Unwelcome • Severe or pervasive to alter the conditions of employment

7. Harassment • Sexual Harassment • Most common • Paid Pro Quo • Hostile Environment • Constructive Discharge

8. An Important word about the unlawful Retaliation Claims? • Most Employment Statutes have Retaliation Provisions: Title VII, ADA, ADEA, FLSA, FMLA. • Retaliation Charges are complex. • Difficult to Avoid because Human Nature to Respond to Misconduct Allegation.

9. The Element of the Retaliation Claim • Plaintiff or Employee Must Engage in Protected Activity. 2. Employer Must Subject the Plaintiff to Adverse Employment Action. 3. There Must be a Causal Connection between the Protected Activity and the Adverse Employment Action.

10. What Constitutes Protected Activity? • The Opposition Clause: Opposition to any Unlawful Employment Practice. 2. The Participation Clause: Participation in Any Activity Protected by Law such as Filing a Charge, Testifying, Assisting in an Investigation or Hearing. 3. Employee Must Act in Good Faith.

11. Understanding Adverse Employment Action • Split Among the Circuits. • Alters Terms or Conditions of Employment. • Material Change, Not Just a Mere Inconvenience.

12. Establishing Causation • Employer Aware of the Protected Activity. 2. That Protected Activity and Adverse Employment Action Cannot be Wholly Unrelated.

13. Employer’s Response to the Retaliation Claim • A Legitimate, Non-discriminatory Reason for the Adverse Employment Action. • The Basis for ALL Employment Decisions. • Other Defense – Temporal Proximity