Proving Intent under McDonnell Douglas

  1. Proving Intent under McDonnell Douglas: prima facie case,
    rebuttal and pretext

    1. The basic back-and-forth:
      1. Employee-plaintiff first must make prima facie case
        1. Example: belongs to racial minority, applied and was
          qualified, employer seeking to fill job, rejected despite qualifications, position still
          open afterward
        2. Many courts have adopted a very strict standard,
          resulting in many cases not making it to trial
        3. What's the standard for a prima facie case in a dismissal case?
          1. (Most discrimination cases are dismissal cases, because
            you typically get reasons when dismissed, etc.)
          2. Some circuits have minimal standards,
          3. But some circuits require that you have a "comparator":
            1. 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
            2. 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!)
      2. Employer must then give reasoning with legitimate, admissible evidence
        of alternative reason

        1. Prevented lawyers from simply making up
        2. Or the courts giving reasons themselves
        3. Why do we make the employer give a reason? What's the function?
          1. Gives the plaintiff a specific answer to attack
            1. So "less qualified" not a
              useful response in court and is not good enough!
        4. Jury Instructions: if you find the reason given by the employer isn't
          true (didn't believe at the time), you should... what?

          1. You may infer that there was a discriminatory reason
            1. Yeah, but I as jury knows something else is going on
              (bribery?) OR
            2. Jury just thinks something else (other than discrimination) might be
              going on

              1. but doesn't know what!
              2. Remember that plaintiff has burden to show more likely
                than not that it was a discriminatory reason
          2. Do you have to infer discrimination (Hicks)?
            1. 5-4 SCOTUS (Scalia) says didn't have to find
            2. but the real dispute is "can you"?
              1. In the end court says "yes, you
            3. not originally intending during Hicks to say
            4. Line is "suspicion of mendacity" in Hicks
      3. Then burden back to employee-plaintiff to
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