So you are being sued?

So you are being sued?

Bases for Lawsuits • Disparate treatment • Disparate (adverse) impact

Discrimination and the Courts • Plaintiff (Employee) • Must establish a “prima facie” case • Plaintiff must present evidence which makes the employer’s actions appear discriminatory • Defendant (Employer) • Must present a rebuttal to “prima facie” case • Defendant must present evidence that justifies the fairness of its actions

Establishing a Prima Facie Case • Company Policy • Plaintiff proves that the company has a formal policy that restricts the selection of a protected group • Discriminatory Remarks • Plaintiff must produce evidence that certain biased remarks were made by the employer regarding the protected group • The McDonnell-Douglas Test • The Four-Fifths Rule

Establishing a Prima Facie Case—The McDonnell-Douglas Test • Developed by the Supreme Court • Requires plaintiff to show that he or she: • Belongs to a protected group in question • Has applied for and is qualified for the job which the employer was seeking applicants • Was rejected • And, after rejection, the position remained open or was filled by someone who was not a member of that protected group

Establishing a Prima Facie Case—The Four-Fifths Rule • Helps courts determine whether between-group differences in hiring rates are large enough to be important • A prima facie case is establishing when the hiring rate of the “disadvantaged” group is less than four-fifths of the “advantaged” group • A prima facie case of sex discrimination would be established if the hiring rate of women were 40 percent, and for men 80 percent, since the hiring rate of women would be one-half of the men

Establishing a Prima Facie Case—Disparate Impact Statistics • Flow Statistics • significant differences in selection rates between groups • Stock Statistics • underutilization of women or minorities relative to their availability in the relevant population • Concentration Statistics • concentration of women or minorities in certain job categories

Rebutting a Prima Facie Case • Bona Fide Occupational Qualification (BFOQ) • Discriminatory Remarks • The McDonnell-Douglas Test • The Four-Fifths Rule

Rebutting a Prima Facie Case —Bona Fide Occupational Qualification • The employer argues that it purposely discriminated against the protected group for one of the following reasons: • All or nearly all members of that group are incapable of performing the job • Authenticity • Propriety • Safety

Rebutting a Prima Facie Case—Discriminatory Remarks • Argue that the remarks were not very derogatory • Argue that the person who made the remarks had no influence on the hiring decision

Rebutting a Prima Facie Case —The McDonnell-Douglas Test • Present evidence that the employment decision was based on legitimate, non-discriminatory reasons • Plaintiff can still win case if they can prove the employer’s reason was merely a pretext or an excuse

Rebutting a Prima Facie Case—The Four-Fifths Rule • The employer must demonstrate that the procedure in question is a business necessity

So you are being sued?