34 Pages Posted: 16 Dec 2007
There are three elements in a plaintiff's prima facie case of individual disparate treatment discrimination. (1) Plaintiff suffered an adverse employment action, (2) that action was linked to the defendant, and (3) the defendant's action was motivated by a protected characteristic of the plaintiff.
The third element - defendant's intent to discriminate - is the most challenging and is the focus of most individual disparate treatment discrimination cases. Part of the difficulty is that the second question - the level of linkage of plaintiff's harm to defendant's action - has been tied up in the discussion of the intent issue. After the Supreme Court decisions in Reeves and Desert Palace, however, it is possible to clarify both the question of the level of linkage and the array of different kinds of claims that can be used to prove discriminatory intent. It is becoming clear that either the but-for or "determinative influence" standard based on the "because of" language of §703(a) of Title VII or the "a motivating factor" standard found in §703(m) can be used to analyze any claim that the defendant acted with discriminatory intent.
Direct, direct-lite, or circumstantial evidence (or any combination of the three) can be used to prove individual disparate treatment discrimination.
The variety of claims of what can be used to prove discriminatory motivation or intent include straightforward claims of unequal treatment, defendant's admissions that it discriminated, actions based on stereotypes, and the McDonnell Douglas approach whether it is characterized as proof that defendant lied in its assertion of a legitimate, nondiscriminatory reason for its action, as proof that completely knocks out defendant's explanation, or as proof by a process of elimination of the likely nondiscriminatory reasons. This is not a complete list of such claims as different evidence and therefore different claims of what can be the basis for drawing the inference of discrimination will no doubt will appear as litigation continues to develop.
Keywords: employment, discrimination, individual disparate treatment, equal treatment, stereotypes, admissions of discrimination, McDonnell Douglas, Reeves v Sandford, Desert Palace, Costa, Title VII, 703(a), 703(m)
JEL Classification: J23, J70, J71, J78, K31, J20
Suggested Citation: Suggested Citation
Zimmer, Michael J., A Chain of Inferences Proving Discrimination. University of Colorado Law Review, Vol. 79, No. 4, 2008; Seton Hall Public Law Research Paper No. 1072046. Available at SSRN: https://ssrn.com/abstract=1072046