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Retaliation

Q & A

Summary of Title VII Discrimination

 Title VII – Discrimination – race, color, religion, sex, or national origin.

Title VII makes it unlawful 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." 42 U.S.C. 2000e-2(a). Title VII's prohibition includes "not only overt discrimination [commonly referred to as disparate-treatment discrimination] but also practices that are fair in form, but discriminatory in operation [commonly referred to as disparate-impact discrimination]." Griggs v. Duke Power Co., 401 U.S. 424, 431, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971).

Under the "disparate-treatment" scenario of employment discrimination, which, of course, is "the most easily understood [form] of discrimination," a plaintiff must demonstrate that the "employer . . . treats some people less favorably than others because of their race, color, religion, sex, or national origin." International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15, 97 S. Ct. 1843, 1854 n.15, 52 L. Ed. 2d 396 (1977). Proof of discriminatory intent, in disparate-treatment cases, "is critical, although it can in some situations be inferred from the fact of differences in treatment." Id.

Claims predicated on the "disparate impact" theory, by contrast, "involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity." Id. A plaintiff advancing a claim of discrimination under the disparate-impact theory of liability need not prove discriminatory intent. See id.

McDonnell Douglas Test: Title VII prohibits employment discrimination on the basis of religion race, color, religion, sex, or national origin. 42 U.S.C. 2000e-2(a). Absent direct evidence of discrimination, a plaintiff must first demonstrate a prima facie case of discrimination. McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973); Chalmers v. Tulon Co. of Richmond , 101 F.3d 1012, 1017 (4th Cir. 1996), cert. denied, 139 L. Ed. 2d 21, 118 S. Ct. 58 (1997). Once a party has made a prima facie case, the employer must provide a legitimate nondiscriminatory justification for its action. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); Chalmers, 101 F.3d at 1017-18. If the employer advances such a justification, the plaintiff then must prove that this justification is a mere pretext for an actual discriminatory motive. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993); Chalmers, 101 F.3d at 118.

Farragher v. City of Boca Raton, 118 S. Ct. 227 (1998); Burlington Industries v. Ellerth, 118 S. Ct. 2257 (1998) : If the harasser is a supervisor with immediate (or successively higher) authority, a plaintiff makes a prima facie case of actionable sexual harassment by showing that (a) the conduct is unwelcomed; (b) that it is based on sex and (c) it is sufficiently pervasive or severe to create an abusive working environment—that it results in tangible employment action However, when no tangible employment action is taken, the employer escapes liability if it can prove, as an affirmative defense, that (a) the employer exercised reasonable care to prevent and correct promptly the harassing behavior and (b) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.

Tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. Burlington.