Many people believe that there is no way that racial, sex, religious or other forms of discrimination could still exist in the workplace in 2014.  The laws against such practices have been in place for decades.  People should just know that you can’t do that sort of thing, right?  In fact, workplace discrimination is alive and well even though there are federal and state statutes that prohibit an employer from discriminating against an employee on the basis of gender, race, religion, age and disability with respect to the terms of employment.

Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination.  The case law for such claims is well-developed and provides a clear framework for analyzing whether discrimination has taken place.  Title VII single-motive claims proceeding on circumstantial evidence (where there is no obvious direct evidence of discrimination) are analyzed under the burden-shifting framework. 

This framework first requires that the plaintiff establish a prima facie case. To demonstrate a prima facie case, the plaintiff must show that (1) he or she was a member of a protected class; (2) he or she suffered an adverse employment action; (3) he or she was qualified for the position; and (4) he or she was replaced by someone outside the protected class or was treated differently than similarly-situated, non-protected employees.

Once a prima facie case has been shown, the plaintiff is entitled to a presumption that the defendant discriminated against him or her in violation of Title VII. The defendant then bears the burden of production to put forth a “legitimate, nondiscriminatory reason” for the complained of adverse treatment. The explanation provided must be legally sufficient to justify a judgment for the defendant.  If the defendant meets this burden, the presumption of discrimination created by the prima facie case falls away, and the plaintiff then needs to show that the defendant’s “ ‘legitimate nondiscriminatory reason’ ” was a “ ‘pretext for discrimination.’ ” Throughout this burden-shifting approach, the plaintiff continues to bear the ultimate burden of proving, by a preponderance of the evidence, the intent to discriminate.

Individual disparate-treatment claims brought pursuant to Title VII are often categorized as either single-motive claims, i.e., when an illegitimate reason motivated an employment decision, or mixed-motive claims, when “both legitimate and illegitimate reasons motivated the decision.” The Supreme Court first recognized the mixed-motive theory in Price Waterhouse v. Hopkins, where the Court held, in a plurality opinion, that a plaintiff could shift the burden of proof to the employer to prove an affirmative defense upon a showing that the protected characteristic “ ‘played a motivating part in an employment decision.’ ” The employer would then be held liable unless it “ ‘prov[ed] by a preponderance of the evidence that it would have made the same decision even if it had not taken plaintiff’s [protected trait] into account.’ ” 

Then, in an attempt “ ‘to eliminate the employer’s ability to escape liability in Title VII mixed-motive cases by proving that it would have made the same decision in the absence of the discriminatory motivation,’ ” Congress enacted the 1991 Civil Rights Act (“the 1991 Act”), which amended Title VII.  One of the new statutory provisions codified the mixed-motive “alternative for proving that an ‘unlawful employment practice’ has occurred.” The provision states that a plaintiff can raise a mixed-motive Title VII claim by “demonstrat[ing] that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” If the plaintiff makes such a showing, she is entitled to relief. However, the 1991 Act also provides that the employer’s liability will be limited to injunctive and declaratory relief and attorney fees and costs if the employer can establish that it “would have taken the same action in the absence of the impermissible motivating factor.” The declaratory and injunctive relief may not include “an order requiring any admission, reinstatement, hiring, promotion, or payment.”

Although discrimination is alive and well, discrimination cases are not the easiest cases to win.  Employers often are able to show legitimate, non-discriminatory reasons for adverse employment decisions.  Aggrieved employees also tend to quickly allege discrimination where none exists.  It is not enough to state “I am a minority and they fired me.”  That might be enough to establish a prima facie case, but not to win the suit.  

— Kassem Dakhlallah is a senior partner with At Law Group, PLLC.  His practice focuses on complex litigation, including class actions, representative actions, commercial litigation, civil forfeiture and personal injury. He can be reached at (313) 406-7606 and kd@atlawgroup.com.