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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.
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