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Flashcards in Claims: Individual Disparate Treatment Deck (32):
1

What are the 5 types of claims?

Individual disparate treatment

Systemic disparate treatment

System disparate impact

Harassment

Retaliation

2

What is individual disparate treatment?

The employer treats an individual differently from others because of a prohibited characteristic.

3

To make a claim of individual disparate treatment, what must a claimant show?

Intent

4

How can intent under the individual disparate treatment framework be show? (2)

Single Motive

Mixed Motive

5

What is the name of the test used to evaluate single motive, individual disparate treatment?

McDonnell Douglas Test

6

The McDonnell Douglas Test evaluates what?

single motive, individual disparate treatment

7

The McDonnell Douglas Test is what type of test?

Burden shifting

8

What four or five things must a plaintiff prove in a prima facie case for single motive, individual disparate treatment?

Membership in a protected class

Qualified for the position (adequacy standard)

[Applied for an open position OR suffered an adverse employment action

Position remained open OR was filled with someone outside of the protected class.

9

Once the prima facie case is established in a single motive, individual disparate treatment case, what effect?

A presumption of discrimination is created.

10

Once a presumption of discrimination is created in a single motive, individual disparate treatment case, what happens if the employer remains silent?

Plaintiff wins

11

Once the prima facie case is established in a single motive, individual disparate treatment case, the burden shifts to the employer to articulate a " ______, ______ ______" for the employment action.

Legitimate, non-discriminatory reason.

12

When a defendant meets its burden of articulating a legitimate, non-discriminatory reason for its action in a single motive, individual disparate treatment case, what effect?

The presumption of discrimination will be dropped.

13

When a defendant meets its burden of articulating a legitimate, non-discriminatory reason for its action in a single motive, individual disparate treatment case, the burden shifts to the plaintiff to prove ______.

Pretext.

14

In order to show pretext in a single motive, individual disparate treatment case, the plaintiff must prove what two things?

That the LNDR offered by D is not the real reason behind the employment action; AND

The real reason behind the employment action was discrimination and the discrimination was the determinative factor in the decision.

15

True or False: Once a plaintiff shows that the LNDR is false in a single motive, individual disparate treatment case, he is entitled to judgment as a matter of law.

False.

16

Summarize the burden shifting system under the McDonnell Douglas Test for single motive, individual disparate treatment cases.

P proves the prima facie case

D articulates a LNDR

P prove pretext (i.e., membership in the protected class was a determinative factor in the decision).

17

What is a mixed motive, individual disparate treatment case?

One in which the employment action was taken due to both permissible and impermissible motives.

18

What is true of the causation standard in a mixed motive, individual disparate treatment case?

Lower causation standard.

19

True or False: Each statute gets its own framework fort mixed motive, individual disparate treatment cases.

True

Fuck . . .

20

For a mixed motive, individual disparate treatment case under Title VII, an unlawful employment action is established when a plaintiff has demonstrated that an impermissible reason was a ________ ________ in the decision.

This is known as the ______ Instruction

Motivating Factor.

703(m).

21

If a plaintiff has made a 703(m) showing (i.e., an impermissible reason was a motivating factor in the decision) under Title VII, the defendant can use what defense?

The Same Decision Defense

22

Under the same decision defense for a mixed motive, individual disparate treatment case under Title VII, the defendant has the opportunity to do what? What burden of proof?

Demonstrate that it would have made the same decision in the absence of the impermissible reason

Preponderance of the evidence.

23

If a Defendant is successful in establishing a Same Decision Defense in a mixed motive, individual disparate treatment case under Title VII, then the court may grant what? (4)

Declaratory relief

Injunctive Relief

Attu's fees

Costs

24

If a Defendant is successful in establishing a Same Decision Defense in a mixed motive, individual disparate treatment case under Title VII, then the court may NOT grant what? (4)

Damages

Reinstatement

Hiring

Promotion

25

Does the mixed motive, individual disparate treatment case require direct evidence under Title VII?

No

26

Under the ADA, a claim for mixed motive, individual disparate treatment generally requires the plaintiff to have what?

Direct evidence that an impermissible reason was a motivating factor in the decision.

27

Once an ADA claimant presents Direct evidence that an impermissible reason was a motivating factor in the decision for a claim for mixed motive, individual disparate treatment, the employer may avoid liability how? Standard of proof?

What is this defense called?

By proving that it would have made the same decision absent the impermissible reason.

Preponderance of the Evidence

Price Waterhouse Framework

28

For which statute is a claim for mixed motive, individual disparate treatment NOT permitted?

ADEA.

29

Describe the different points at which liability attaches to the employer under Title VII and the ADA for claims of systemic disparate treatment.

Under Title VII, liability attaches after P shows that the impermissible reason was a motivating factor

Under the ADA, liability attaches after the employer has an opportunity to show the Same Decision Defense.

30

How does the effect of the Same Decision Defense differ under Title VII and the ADA?

Under Title VII, the SDD merely reduces the available remedies.

Under ADA, the SDD absolves liability altogether.

31

Why are no mixed motive claims of individual disparate treatment permitted under the ADEA?

Age must be the but-for cause of the action.

32

If a claimant has direct evidence of discrimination, he need not address . . .

The McDonnell Douglas Burden Shifting Test