- Proving Intent under McDonnell Douglas: prima facie case,
rebuttal and pretext- The basic back-and-forth:
- Employee-plaintiff first must make prima facie case
- Example: belongs to racial minority, applied and was
qualified, employer seeking to fill job, rejected despite qualifications, position still
open afterward - Many courts have adopted a very strict standard,
resulting in many cases not making it to trial - What's the standard for a prima facie case in a dismissal case?
- (Most discrimination cases are dismissal cases, because
you typically get reasons when dismissed, etc.) - Some circuits have minimal standards,
- But some circuits require that you have a "comparator":
- Must have someone else in your "group" (some say "nearly
identical," which is a VERY high standard--and it's not a jury issue) who didn't get
fired. - In the 7th Circuit, must be identical, NOT worse! (So you
stole something, someone else shot the CEO and didn't get fired--not identical enough as
a comparator!)
- Must have someone else in your "group" (some say "nearly
- (Most discrimination cases are dismissal cases, because
- Example: belongs to racial minority, applied and was
- Employer must then give reasoning with legitimate, admissible evidence
of alternative reason- Prevented lawyers from simply making up
reasons - Or the courts giving reasons themselves
- Why do we make the employer give a reason? What's the function?
- Gives the plaintiff a specific answer to attack
- So "less qualified" not a
useful response in court and is not good enough!
- So "less qualified" not a
- Gives the plaintiff a specific answer to attack
- Jury Instructions: if you find the reason given by the employer isn't
true (didn't believe at the time), you should... what?- You may infer that there was a discriminatory reason
- Yeah, but I as jury knows something else is going on
(bribery?) OR - Jury just thinks something else (other than discrimination) might be
going on- but doesn't know what!
- Remember that plaintiff has burden to show more likely
than not that it was a discriminatory reason
- Yeah, but I as jury knows something else is going on
- Do you have to infer discrimination (Hicks)?
- 5-4 SCOTUS (Scalia) says didn't have to find
it - but the real dispute is "can you"?
- In the end court says "yes, you
can"
- In the end court says "yes, you
- not originally intending during Hicks to say
this. - Line is "suspicion of mendacity" in Hicks
- 5-4 SCOTUS (Scalia) says didn't have to find
- You may infer that there was a discriminatory reason
- Prevented lawyers from simply making up
- Then burden back to employee-plaintiff to
rebut
- Employee-plaintiff first must make prima facie case
- The basic back-and-forth:
Class notes and materials by a law student for law students.