1.3 Theories of Discrimination and Proof

• Library: Employment Law in Virginia (Virginia CLE) (2020 Ed.)

1.3 THEORIES OF DISCRIMINATION AND PROOF

1.301 Disparate Treatment Theory.

A. In General. "Disparate treatment is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex or national origin." ¹¹¹ The issue in disparate treatment cases is whether the employer treated the plaintiff less favorably for prohibited discriminatory reasons. ¹¹²

The key to any disparate treatment case is differentiating how similarly situated employees are treated. Properly defining which employees are similarly situated to the plaintiff is a crucial early task in any case.

In Karpel v. Inova Health System Services, ¹¹³ the court reaffirmed that a plaintiff who is not performing satisfactorily cannot establish a prima facie case and, therefore, cannot prevail on a Title VII claim.

In order for two or more employees to be considered similarly situated for the purpose of creating an inference of disparate treatment, appellant must show that all of the relevant aspects of his employment situation are nearly identical to those of the comparative employees whom he alleges were treated differently. ¹¹⁴

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A plaintiff's admission that she was not performing her job duties at the level of the employer's reasonable expectations precludes her from ever establishing a prima facie case. ¹¹⁵ Similarly, the fact that a plaintiff's team was performing satisfactorily does not establish that the plaintiff had performed satisfactorily. ¹¹⁶

B. Proof of Intentional Discrimination. "The ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination." ¹¹⁷ Disparate treatment may be inferred from the mere fact of difference in treatment. ¹¹⁸ A plaintiff can prove intentional discrimination by either circumstantial or direct evidence, ¹¹⁹ although proof is generally by circumstantial evidence and relatively few cases include direct evidence of discrimination. Statistics alone are generally considered insufficient to prove intent, but they may assist in proving it.

C. Burden of Proof.

1. In General. The plaintiff always bears the ultimate burden of proof of establishing intentional discrimination by a preponderance of the evidence. ¹²⁰ Because in most cases there is no direct evidence of discriminatory intent, the United States Supreme Court, in McDonnell Douglas Corp. v. Green, ¹²¹ devised a procedural framework for establishing the requisite intent. Traditionally, there were three steps in the McDonnell Douglas burden-shifting analysis, but developments in the law have essentially added a fourth. First, the plaintiff establishes a prima facie case. This is rarely difficult. The employer then offers a legitimate nondiscriminatory reason for its actions. The plaintiff then attempts to prove that the employer's reasons are just a pretext for discrimination. As a fourth step, the employer attempts to show that even

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if there was discrimination, the employer would have taken the same actions absent the discrimination.

2. Plaintiff's Prima Facie Case.¹²² The plaintiff has the initial burden of establishing a prima facie case by a preponderance of the evidence, that is, "providing a set of facts which would enable the fact-finder to conclude, in the absence of any further explanation, that it is more likely than not that the adverse employment action was the product of discrimination." ¹²³

The plaintiff establishes a prima facie case of disparate treatment discrimination under Title VII by showing that (i) the plaintiff belongs to a protected class; (ii) the plaintiff suffered an adverse employment action; ¹²⁴ (iii) the plaintiff was performing his or her job duties at a level that met the employer's legitimate expectations at the time of the adverse employment action; and (iv) similarly-situated employees outside of the protected class received more favorable treatment. ¹²⁵ The courts have noted that this burden is not difficult to meet. The Fourth Circuit has held that the traditional "fourth prong" is not necessary in limited cases, such as when the hiring and firing decisions were made by different decisionmakers, ¹²⁶ or the hiring of another person within the protected class is done to conceal discrimination. ¹²⁷

In Love-Lane v. Martin, ¹²⁸ the court concluded that a plaintiff who had only received "ratings of standard or above in 8 out of 11 evaluation categories" still was able to establish a case of discrimination. Notwithstanding this conclusion, the Fourth Circuit held that the plaintiff had not produced any

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evidence of pretext, and, therefore, the plaintiff could not withstand summary judgment except for the plaintiff's claim against the school superintendent in his individual capacity.

In King v. Rumsfeld, ¹²⁹ the court reaffirmed its position that if the plaintiff fails to establish a prima facie case of intentional discrimination, the court never has to examine the employer's reason for the employment action. The court also held that the plaintiff had to establish the third prong of the prima facie test that he was meeting his employer's reasonable performance expectations by offering evidence from his supervisors, company documents, or expert testimony. It is axiomatic that the perception of the decisionmakers, not the perceptions of the employee, are looked to in order to determine whether the plaintiff was meeting performance expectations. ¹³⁰

In Lightner v. City of Wilmington, ¹³¹ the Fourth Circuit affirmed the district court's grant of summary judgment for the defendants in the plaintiff's lawsuit for race and gender discrimination. The employee admitted on multiple occasions throughout the litigation that the reason for his suspension was to quash his internal investigation into police department officers' failure to report automobile accidents. That was not race or gender discrimination, and consequently, the employee's suspension, however wrongful, was not actionable under federal law. The employee's claim was in the nature of a state wrongful discharge claim, which was a matter of state employment and tort law. As to the employee's contention that a Black female comparator was disciplined less harshly for more egregious violations, the comparison was not sufficient because the two officers were not comparable. Moreover, the McDonnell Douglas framework did not transform all instances of disparate treatment into unlawful discrimination.

In EEOC v. Firestone Fibers & Textiles Co., ¹³² the Fourth Circuit affirmed the district court's grant of summary judgment for the employer in the plaintiff's claim for religious discrimination under Title VII. In religious accommodation cases, courts use a burden-shifting scheme akin to the one articulated by the Supreme Court in McDonnell Douglas. A plaintiff must first establish a prima facie claim by showing that he or she: (i) has a bona fide

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religious belief that conflicts with an employment requirement; (ii) informed the employer of this belief; and (iii) was disciplined for failure to comply with the conflicting employment requirement. Title VII did not require the employer to totally accommodate the employee's religious needs but only to provide a "reasonable accommodation," which it had done.

A plaintiff who can establish that he or she was performing satisfactorily, either by using documentation such as evaluations or the testimony of supervisors, not co-workers, may not only establish a prima facie case but also avoid summary judgment. ¹³³

In Collins v. Baltimore City Board of School Commissioners, ¹³⁴ the plaintiff was transferred and filed a claim of race discrimination, providing testimony of co-workers that she was replaced by a person outside of her protected class. The employer put forth conflicting evidence that plaintiff was not replaced. In analyzing the fourth prong of the prima facie case, the Fourth Circuit found that summary judgment in favor of the employer was proper even where a factual dispute exists as to whether the plaintiff was replaced by a person outside of his or her protected class if plaintiff is unable to show that the transfer occurred "'under circumstances which give rise to an inference of unlawful discrimination.'" ¹³⁵

In considering a claim of a hostile work environment, the Fourth Circuit held that the district court had erred when it disregarded the affidavits of the plaintiff's co-workers describing sexist comments that were not witnessed by the employee. ¹³⁶ According to the court, the district court had "misunderstood" the relevance of the affidavits of the co-workers. ¹³⁷ Misconduct that the employee did not witness was relevant because it could have contributed to evidence offered to show that the workplace environment was hostile. Evidence showing that female co-workers experienced treatment similar to that claimed by the employee could have lent credence to the employee's claims about her own treatment, showed that the alleged

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harassment was pervasive, or supported a finding that the employee was treated badly by co-workers because of her gender.

3. Employer's Nondiscriminatory Reason. Once a prima facie case is established, the employer must articulate a legitimate, nondiscriminatory reason for the challenged employment decision. ¹³⁸ The burden here is one of "production" and not of "persuasion." The ultimate burden of "persuasion" or "proof" always remains with the complainant. ¹³⁹ There is no requirement to prove the absence of a discriminatory motive. ¹⁴⁰ As a practical matter, the employer should present evidence as though it were the employer's burden to prove that the "legitimate reason" existed in fact and that unlawful discrimination was not the cause of the employment action. ¹⁴¹ A jury will rarely understand the complicated jury instructions on this issue and will generally base...