Chapter 3 - § 3.4 • PROOF OF A TITLE VII VIOLATION

• Jurisdiction: Colorado

§ 3.4 • PROOF OF A TITLE VII VIOLATION

§ 3.4.1—Burdens Of Proof And The Prima Facie Case

A violation of Title VII can be proved in essentially two basic ways: by proving intent to discriminate because the employee was treated differently due to his or her protected class or by proving that an employer's policy or practice has a disparate impact on a group covered by Title VII. "Disparate treatment" is the name given to the theory of proving discrimination recognized by the Supreme Court in McDonnell Douglas Corp. v. Green, where the plaintiff needs to prove discriminatory intent. 411 U.S. 792 (1973). This theory was refined later by the Supreme Court in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). "Disparate impact" is the name given to the theory of proving discrimination recognized by the Supreme Court in Griggs v. Duke Power Co., where the plaintiff needs to prove that an employer had a facially neutral employment policy or practice that had a disproportionately disadvantageous effect on a particular group. 401 U.S. 424 (1971). The terms "disparate treatment," "disparate impact," and references to the McDonnell Douglas burden of proof are used throughout the case law governing Title VII, and it is important for every lawyer practicing employment law to have an understanding of these terms.

A plaintiff's Title VII complaint must contain relevant information to make the claims plausible on their face. General assertions of discrimination and retaliation without any details are likely to be insufficient to survive a motion to dismiss under F.R.C.P. 12(b)(6). Khalik v. United Airlines, 670 F.3d 1188 (10th Cir. 2012).

Equally important to a Title VII claim analysis is the determination of the type of case and the standard of proof required to prove it. The type of evidence to be used — direct or circumstantial — must be known. Whether the claims assert theories based on disparate treatment or disparate impact, whether there is a single or mixed motive for the act complained of or defense asserted, and whether a hostile work environment is alleged, must all be assessed.

§ 3.4.2—McDonnell Douglas Burden-Shifting Analysis

Disparate treatment cases require proof of intentional discrimination, which can be proven by circumstantial evidence under a three-step analysis as the McDonnell Douglas burden-shifting analysis. In a disparate treatment claim, the burden of proof is always on the plaintiff to prove discrimination. The case law that has developed since McDonnell Douglas can be confusing because the case law often discusses the burden of proof in terms of shifting the burden of proof from plaintiff to defendant. However, the burden is always on the plaintiff to prove his or her disparate treatment claim under Title VII. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); Reeves v. Sanderson Plumbing Prods., 530 U.S. 133 (2000).

First Step

Under McDonnell Douglas, the Supreme Court prescribed a three-step burden-shifting framework for cases in which a plaintiff relies on circumstantial evidence to prove his or her disparate treatment case. First, a plaintiff must set out a prima facie case as defined in McDonnell Douglas, from which discriminatory intent can be inferred. The defendant then has the burden of articulating a legitimate nondiscriminatory reason for the adverse action. This is the employer's burden of production only, not a burden of persuading the court that it actually was motivated by the proffered reason. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981); EEOC v. Flasher Co., Inc., 986 F.2d 1312, 1316 (10th Cir. 1992). The plaintiff in the rebuttal phase must then prove that the articulated reason was pretextual.

Proving a prima facie case under the McDonnell Douglas model is a relatively light burden. Since the McDonnell Douglas case was a failure-to-hire case, the Supreme Court ruled that under McDonnell Douglas, a plaintiff must prove the following:

• The plaintiff belonged to a protected class;
• The plaintiff applied for and was qualified for the job for which the defendant was seeking application;
• Despite such qualifications, the plaintiff was rejected; and
• Following the plaintiff's rejection, the position remained open and the defendant continued to seek applicants with the plaintiff's qualifications or the position was filled by a person outside the protected class, 411 U.S. at 802; Ingels v. Thiokol Corp., 42 F.3d 616, 621 (10th Cir. 1994) (rev'd on other grounds); see also Marx v. Schnuck Mkts. Inc., 76 F.3d 324 (10th Cir. 1996); Kenworthy v. Conoco, Inc., 979 F.2d 1462 (10th Cir. 1992).

The plaintiff's prima facie case should be tailored to the adverse employment action at issue in each circumstance, such as in a termination case, Amro v. Boeing Co., 232 F.3d 790, 797 (10th Cir. 2000); a layoff, Adamson v. Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1151 (10th Cir. 2008); the failure to promote, Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1134 (10th Cir. 2004); or the failure to hire, Whalen v. Unit Rig, Inc., 974 F.2d 1248 (10th Cir. 1992). In some instances, pattern and practice allegations can support a prima facie case. See Bird v. West Valley City, 832 F.3d 1188, 1200-10 (10th Cir. 2016). Constructive discharge can be an adverse employment action. The constructive-discharge doctrine contemplates a situation in which an employer discriminates against an employee to the point such that his or her "working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign." Pennsylvania State Police v. Suders, 542 U.S. 129, 141 (2004). Such a resignation under Title VII treats that resignation as tantamount to an actual discharge. Id. A claim of constructive discharge has two basic elements. A plaintiff must prove first that he or she was discriminated against by the employer to the point where a reasonable person in his or her position would have felt compelled to resign. Then, the employee must also show that he or she actually resigned. Id.

Second Step

If a plaintiff has set forth a prima facie case, then an inference of discrimination arises. This inference can be rebutted by the defendant's articulation of a legitimate nondiscriminatory reason for its actions. Almost any reason offered by the employer meets its burden of production. St. Mary's Honor Ctr. v. Hicks, 509 U.S. at 514. Common reasons include poor job performance or inappropriate conduct in termination cases; superior qualifications of the successful hire in failure-to-hire cases; and financial or budgetary reasons in layoffs. Rea v. Martin Marietta Corp., 29 F.3d 1450 (10th Cir. 1994); EEOC v. Flasher Co., 986 F.2d 1312, 1318 (10th Cir. 1992); EEOC v. Safeway Stores, Inc., 634 F.2d 1273, 1281 n. 4 (10th Cir. 1980); Cunico v. Pueblo Sch. Dist. No. 60, 917 F.2d 431 (10th Cir. 1990).

Defendants also will defend a Title VII claim by attempting to defeat the elements of a prima facie case by proving, for example, that the plaintiff did not actually apply for a position in a failure-to-promote case or that the plaintiff was not qualified for the position. Whalen v. Unit Rig, Inc., 974 F.2d 1248 (10th Cir. 1992); but see MacDonald v. Eastern Wyo. Mental Health Ctr., 941 F.2d 1115 (10th Cir. 1991) (a plaintiff may prove that she was a satisfactory performer and that she possessed the qualifications for the job through her own testimony that her work was satisfactory or by evidence that she held her position for a significant period of time).

Another example of a defendant's challenge to the prima facie case is where the defendant in a termination...