Elements of Proof — Workplace EEO

Elements of Proof

Workplace EEO

A reference guide to the elements required to establish each type of equal employment opportunity claim in workplace investigations — for corporate, nonprofit, and government investigators.

Reference Guide

By-the-Book Workplace InvestigationsPer Scholas · People Success Toolkit

Elements of Proof · Workplace EEOBy-the-Book Workplace Investigations
Reference guide — use with counselPrecision in Process. Integrity in Practice.
How to use this guide Reading the elements of proof Each claim follows a three-part framework. Work them in order. Where the respondent cannot explain a difference in treatment, or the explanation is a pretext, a violation may be found. Step 1 Prima facie case What the charging party must establish to raise an inference of discrimination. Step 2 Rebuttal The legitimate, nondiscriminatory reason the employer offers in response. Step 3 Pretext The showing that the employer’s reason is a cover for discrimination. CP = Charging Party / Complainant · ER = Employer / Respondent Use with counsel This guide states the elements under federal EEO law. State and local law may add protected classes or apply different standards. Measure conduct against your organization’s policy first, and confirm the governing legal standard with counsel before reaching conclusions. Part 1 Core Frameworks The analytical models: disparate treatment, disparate impact, and disability coverage. I. Disparate Treatment Disparate treatment occurs when an employer treats a CP differently because of a protected characteristic. A claim may be established through circumstantial or direct evidence. A. Circumstantial Evidence — Hiring / Promotion Prima Facie Case CP is a member of a protected class CP applied for a position for which CP met the stated qualifications CP was rejected ER filled the position or continued to seek applicants with similar qualifications (ER's selection of a person outside CP's protected class supports an inference of discrimination, though this is not always a required element) Rebuttal ER articulates a legitimate, nondiscriminatory reason for rejecting CP Pretext The reasons advanced by ER are a pretext to hide discrimination. Examples: ER's reason is not believable Similarly situated individuals outside CP's class were treated differently Evidence of bias by ER's decision makers toward persons of CP's class Statistics showing underemployment of members of CP's class (helpful but usually not determinative) Note CP must be a member of a protected class and must have suffered adverse treatment. A claim should not be dismissed based on lack of comparative evidence if CP was not in a position to have access to such evidence. B. Circumstantial Evidence — Discharge / Discipline Prima Facie Case CP is a member of a protected class CP was performing at a satisfactory level CP was discharged or otherwise disciplined CP was replaced by an employee outside the protected class (not always a required element) Rebuttal ER articulates a legitimate, nondiscriminatory reason for discharging or disciplining CP Pretext The reasons advanced are a pretext to hide discrimination (see examples in Section I.A above). C. Direct Evidence of an Exclusionary Policy (Title VII / ADEA) Prima Facie Case Testimony or documentary evidence of an employment policy or practice to exclude CP from a job or otherwise adversely treat persons in CP's protected class Rebuttal ER disproves the discriminatory policy or practice, or proves a statutory defense such as BFOQ (Bona Fide Occupational Qualification) Note Under the ADA, an employer can justify a blanket exclusionary policy if it proves the policy is job-related and consistent with business necessity, and that the particular CP could not perform the job even with a reasonable accommodation. D. Mixed Motives Defense Prima Facie Case Circumstantial or direct evidence proves that discrimination against CP on the basis of their protected class was a motive in the challenged action Rebuttal ER is unable to discredit proof of discriminatory motive but attempts to prove it would have taken the same action even without the discriminatory motive Relief (Title VII, ADA, EPA) ER is liable at minimum for injunctive relief and attorney's fees. If ER proves the challenged action was also based on a legitimate motive that would have independently produced the same action, ER may avoid liability for reinstatement, back pay, or damages. If ER cannot prove this, it is liable for full relief. Note The mixed motive theory is not available under the ADEA following Gross v. FBL Financial Services. Under the ADEA, CP must establish that age was the 'but-for' cause of the employer's action. E. After-Acquired Evidence of Legitimate Motive Proof CP proves through circumstantial or direct evidence that discrimination was the true motive operating at the time of the challenged action. Relief If ER proves a legitimate basis for the challenged action discovered after-the-fact, and that this evidence would have led to the same action regardless of the discrimination, CP is usually not entitled to reinstatement. Back pay and compensatory damages (other than emotional harm) are limited to the period prior to discovery of the after-acquired evidence. II. Disparate Impact Disparate impact occurs when a neutral employment practice has a disproportionate adverse effect on a protected group, even absent discriminatory intent. A. Disparate Impact Under Title VII Prima Facie Case A neutral employment practice has a disproportionate adverse effect on CP's protected class Rebuttal ER proves the challenged practice is job-related and consistent with business necessity Alternatives There is an alternative employment practice that would be substantially as effective but would have less adverse impact. B. Disparate Impact Under the ADEA Note The disparate impact theory is available under the ADEA, but the scope of liability is narrower than under Title VII. Prima Facie Case A neutral employment practice has a disproportionate adverse effect on older workers CP must isolate and identify the specific employment practice(s) allegedly responsible for the observed statistical disparities Rebuttal ER shows the practice is based on reasonable factors other than age (RFOA). This standard is narrower than the Title VII business necessity test — the RFOA defense does not require ER to show there are no alternative practices with less adverse impact. Note Investigators handling possible ADEA disparate impact claims should consult with Legal counsel. The EEOC regulation at 29 CFR Part 1625 defines the RFOA defense. C. Discriminatory Qualification Standards and Selection Criteria (ADA) Prima Facie Case CP has a physical or mental impairment that substantially limits one or more major life activities A neutral qualification standard or selection criterion screens out CP on the basis of their disability, and CP satisfies the other job requirements Rebuttal ER proves the challenged standard is job-related and consistent with business necessity ER proves CP could not meet the standard even with a reasonable accommodation Note Investigators should refer to ADAAA regulations at 29 CFR Part 1630 for guidance on qualification standards under the ADA Amendments Act. III. Establishing Disability Coverage Under the ADAAA Before reaching the merits of a disability discrimination claim, investigators must confirm that CP's impairment qualifies as a 'disability' under the ADA Amendments Act (ADAAA). There are three coverage prongs: (1) actual disability, (2) record of a disability, and (3) regarded as having a disability. A. Impairments on the EEOC Per Se Disability List [29 CFR § 1630.2(j)(3)(iii)] Rule If CP has an impairment on the per se list AND the impairment is either (a) readily observable, or (b) supported by medical documentation, the impairment should be concluded to be a disability under the ADAAA without further analysis. Per se impairments include deafness, blindness, partially or completely missing limbs, mobility impairments requiring a wheelchair, intellectual disability, autism, cerebral palsy, major depressive disorder, bipolar disorder, PTSD, obsessive compulsive disorder, schizophrenia, cancer, diabetes, epilepsy, HIV infection, multiple sclerosis, and muscular dystrophy. B. Impairments Not on the Per Se List — Models of Proof Models of proof 1. Substantially Limited Major Bodily Functions Medical evidence shows the physical or mental impairment substantially limits a major bodily function, OR A substantial limitation of a major bodily function is readily observable If either condition is met, the impairment is a disability under the ADAAA 2. Substantially Limited Traditional Major Life Activities CP has a physical or mental impairment, AND Evidence shows the impairment substantially limits a traditional major life activity Evidence may include CP's own account, medical records, or statements from persons who know CP 3. Mitigating Measures The impairment substantially limited a major life activity before use of a mitigating measure, OR The impairment would substantially limit a major life activity if the mitigating measure were stopped If either condition is met, the impairment is a disability under the ADAAA 4. Episodic Impairments or Impairments in Remission An episodic impairment or an impairment in remission would substantially limit a major life activity when active If so, the impairment is a disability under the ADAAA 5. Record of a Disability Evidence shows CP had an impairment that substantially limited a major life activity, OR CP was misclassified as having such an impairment If either condition is met, CP has a 'record of' a disability under the ADAAA 6. Regarded As Having a Disability CP has an impairment, OR ER believed CP has an impairment ER took an adverse action against CP ER took the adverse action because of the actual or perceived impairment The impairment is objectively not transitory and not minor If all four conditions are met, CP is 'regarded as' having a disability Part 2 Specific Claims Wage, accommodation, retaliation, and harassment — including sexual harassment and employer liability. IV. Other Forms of Unlawful Discrimination A. Sex-Based Wage Disparity (Equal Pay Act) Prima Facie Case Unequal pay between CP and one or more employees of the opposite sex The jobs at issue require substantially equal skill, effort, and responsibility The jobs are performed under similar working conditions within the same establishment Rebuttal The wage difference is based on a seniority system, merit system, incentive system, or any factor other than sex B. Failure to Provide Religious Accommodation (Title VII) Prima Facie Case CP sincerely holds a religious belief that conflicts with a job requirement CP informed ER of the conflict and the need for accommodation ER failed to provide a reasonable accommodation Rebuttal The requested accommodation would result in more than minimal (undue) hardship to ER C. Failure to Provide Reasonable Accommodation (ADA) Prima Facie Case CP has a disability under prong one (impairment substantially limiting a major life activity) or prong two (record of a disability) CP notified ER of the disability and need for accommodation An accommodation exists that would allow CP to participate in the application process, perform the essential functions of the job, or enjoy equal benefits and privileges of employment ER failed to provide an effective accommodation Rebuttal The requested accommodation (as well as any alternative effective accommodations) would pose an undue hardship Note Investigators should refer to ADAAA regulations at 29 CFR Part 1630. D. Retaliation Prima Facie Case CP opposed what CP reasonably and in good faith believed to be an unlawful employment practice, or CP participated in the EEO process ER subjected CP to adverse treatment There is a causal connection between CP's protected activity and the adverse treatment (e.g., shown by the timing of adverse treatment soon after CP's protected activity) Rebuttal ER articulates a legitimate, nondiscriminatory reason for the adverse action Pretext The reasons advanced by ER are a pretext to cover a retaliatory motive. Examples: ER's reason is not believable Similarly situated individuals who did not oppose discrimination or participate in the EEO process were treated differently E. Harassment (On Any Protected Basis) Prima Facie Case CP was subjected to unwelcome comments or conduct based on their protected class status The conduct resulted in a tangible job action, OR was sufficiently severe or pervasive to interfere with CP's work performance and create a hostile work environment (measured by the standard of a reasonable person in CP's situation) A basis exists for holding ER liable for the harassment Rebuttal ER attempts to prove: (a) the harassment did not happen, (b) CP welcomed the conduct, (c) the conduct was not sufficiently severe or pervasive, or (d) ER did not know about the harassment and cannot be held liable Employer Liability Standards Supervisory / management harassment ER is automatically liable if the harassment resulted in a tangible employment action. If it did not, ER is still liable unless it proves it took reasonable care to prevent and correct the harassment promptly AND that CP unreasonably failed to take advantage of any preventive or corrective opportunities provided by ER Co-worker harassment ER is liable if it knew or should have known of the harassment and failed to take immediate and appropriate corrective action Non-employee harassment ER is liable if it knew or should have known of the harassment, failed to take immediate and appropriate corrective action, and had some degree of control over the harasser Sexual Harassment — Consolidated Sexual harassment takes two recognized forms. Both are actionable. Quid pro quo Harassment tied to a tangible employment action — hiring, firing, promotion, pay, or another significant change in employment. Where a supervisor's harassment culminates in a tangible employment action, the employer is automatically liable. Hostile work environment Unwelcome conduct of a sexual nature that is severe or pervasive enough to interfere with work performance and create a hostile work environment, measured by the standard of a reasonable person in CP's situation. Elements to establish CP was subjected to unwelcome physical advances, comments of a sexual nature, or a sexually hostile work environment CP objected to the advances, comments, or hostile atmosphere When the advances, comments, or atmosphere persisted, CP reported the situation to ER's management ER, although aware of the sexual harassment, made no good-faith effort to correct the conditions The employer-liability standards in Section IV.E (supervisory, co-worker, and non-employee) apply to sexual harassment. Part 3 Elements by Issue Type Quick reference for specific employment actions. Each requires CP to be a member of a protected group as the foundational element. AdvertisingA1 CP belongs to a protected group ER advertised a position specifying membership in a group other than CP's as a requirement, or stated a preference that would discourage CP from applying CP was otherwise qualified for the position ER is unable to establish a bona fide occupational qualification (BFOQ) for the group advertised ApprenticeshipA2 CP is a member of a protected group CP applied for an apprenticeship CP was qualified but was not admitted Others similarly situated but not of CP's group were admitted ER cannot explain the difference in treatment, or the explanation is pretext BenefitsB1 CP is a member of a protected group CP was denied a benefit The denied benefit was extended to others similarly situated but not of CP's group ER cannot explain the difference, or the explanation is pretext DemotionD1 CP belongs to a protected group CP was demoted Others similarly situated but not of CP's group were not demoted ER cannot explain the difference, or the explanation is pretext DischargeD2 CP belongs to a protected group CP was discharged Others similarly situated but not of CP's group were not discharged ER cannot explain the difference, or the explanation is pretext Constructive DischargeC1 CP belongs to a protected group CP was subjected to an unlawful practice under the applicable statute CP protested the unlawful actions, or ER's management was already aware of the actions Despite awareness, ER's management did nothing to correct the conditions Working conditions were so adverse that a reasonable person would not continue in the situation DisciplineD3 CP belongs to a protected group CP was disciplined Others not of CP's group were not disciplined, or were disciplined differently for the same or similar infractions ER cannot explain the different treatment, or the explanation is pretext Exclusion — Union MembershipE1 CP belongs to a protected group CP applied or attempted to join a union CP was denied membership Others similarly situated but not of CP's group were accepted for membership The union cannot explain the difference, or the explanation is pretext HarassmentH1 CP belongs to a protected group CP was subjected to objectionable or offensive treatment by co-workers that embarrassed, ridiculed, tormented, bothered, or coerced CP because of CP's group membership CP made ER aware of the harassment, or ER's management should have known through reasonable observation Despite the objectionable atmosphere, ER took no corrective action ER cannot explain its lack of corrective action, or the explanation is pretext HiringH2 CP belongs to a protected group ER had a vacant position CP applied and was qualified for the position CP was not selected, but a lesser-qualified person not of CP's group was selected IntimidationI1 CP belongs to a protected group CP was subjected to intimidating or offensive behavior by co-workers or management CP made management aware, or management was or should have been aware Despite objections or awareness, management continued to intimidate or permit intimidation of CP ER cannot explain its actions, or the explanation is pretext Job ClassificationJ1 CP is a member of a protected group CP performs the same or substantially the same duties as others not of CP's group who are classified higher on the pay or status scale ER cannot explain the difference in classification, or the explanation is pretext LayoffL1 CP belongs to a protected group CP was laid off Others similarly situated but not of CP's group were not laid off ER cannot explain the difference, or the explanation is pretext MaternityM1 CP is or was pregnant CP told ER she was pregnant, or ER had reason to know ER made an adverse employment decision affecting CP Others similar in their ability to work but not pregnant were treated differently ER cannot explain the difference, or the explanation is pretext PaternityP1 CP is a father with parental care responsibilities CP sought accommodation equal to that granted to mothers with comparable responsibilities ER denied the request or made an adverse employment decision affecting CP Others similar in their ability to work who are mothers were treated differently ER cannot explain the difference, or the explanation is pretext Pay ComparabilityP2 CP is a member of a protected group CP was paid less than others who are comparable for purposes of ER's wage and salary system ER cannot explain the difference in pay, or the explanation is pretext Pay — Equal Pay ActEPA ER pays a lesser rate to one sex than to the opposite sex for substantially the same work The work is performed in the same establishment The work is performed under similar working conditions The work requires equal skill, equal effort, and equal responsibility The wage differential is not attributed to a seniority system, merit system, production-based earnings system, or a factor other than sex PromotionP3 CP belongs to a protected group ER had a vacant position CP applied for or expressed interest in the position CP was qualified for the position CP was not selected, but a lesser-qualified person not of CP's group was selected Qualifications — Disparate TreatmentQ1 CP is a member of a protected group CP expressed interest in or applied for a position for which CP was qualified After CP expressed interest, ER changed the stated qualifications such that CP was no longer qualified Another person not of CP's group was selected ER cannot explain the change in qualifications, or the explanation is pretext Qualifications — Adverse ImpactQ1, AI CP is a member of a protected group CP applied for a position but was not qualified The stated qualifications that CP failed to meet have an adverse impact on CP's group ER cannot establish a business necessity to validate the qualification at issue RecallR1 CP is a member of a protected group CP was denied recall at the time CP was entitled to be recalled from layoff Others not of CP's group but similarly situated were recalled ER cannot explain the difference, or the explanation is pretext ReferencesR2 CP is a member of a protected group CP is a former employee or otherwise has a normal expectation of references from ER CP received unfavorable references Others not of CP's group but similarly situated received neutral or favorable references ER cannot explain the difference, or the explanation is pretext ReferralR3 CP is a member of a protected group CP applied for or sought referral for hire, training, or apprenticeship CP was qualified for the referral sought ER referred others not of CP's group despite CP's qualifications, but did not refer CP ER cannot explain the difference, or the explanation is pretext Reasonable Accommodation — DisabilityR6 CP has a disability under prong one (impairment substantially limiting a major life activity) or prong two (record of a disability) CP notified ER of the disability and need for accommodation An accommodation exists that would allow CP to participate in the application process, perform the essential functions of the job, or enjoy equal benefits and privileges of employment ER failed to provide an effective accommodation ER has not shown that providing the accommodation would be an undue hardship Religious AccommodationR6 CP made ER aware of CP's religious beliefs and practices CP requested accommodation for a religious observance or practice and was denied ER could have reasonably accommodated CP's religious observance or practice without undue hardship ER cannot explain its failure to accommodate, or the explanation is pretext ReinstatementR4 CP is a member of a protected group CP is a former employee with a reasonable expectation or right to reinstatement CP sought reinstatement ER reinstated others similarly situated but not of CP's group, or continues to have vacant positions for which CP is qualified ER cannot explain the difference, or the explanation is pretext RetaliationOR CP engaged in protected activity under the applicable statute ER was aware of CP's participation in the protected activity ER acted to deny CP a right or privilege, or to harm CP There was a causal connection between CP's protected activity and ER's action ER cannot provide a nondiscriminatory reason for the action against CP Involuntary RetirementR5 CP is a member of a protected group CP was forced to accept retirement Others similarly situated but not of CP's group or age were not required to retire ER cannot explain the disparate treatment, or the explanation is pretext Segregated FacilitiesS1 CP is a member of a protected group CP's group is required by instruction or practice to use separate facilities from members of other groups ER cannot explain the segregation, or the explanation is pretext Segregated Union LocalsS2 CP is a member of a protected group By tradition or practice, union membership in CP's occupation has been segregated along group lines CP is a member of such a segregated local or has been denied membership in a local union that does not admit individuals of CP's group CP is qualified for membership by occupation or employment ER cannot explain the segregation, or the explanation is pretext SeniorityS3 CP is a member of a protected group CP is entitled to a right or rights by virtue of length of employment with ER ER refused to honor or denied CP's exercise of that right Others similarly situated but not of CP's group were permitted to exercise their rights ER cannot explain the difference, or the explanation is pretext Sexual HarassmentS4 CP was subjected to unwelcome physical advances, comments of a sexual nature, or a sexually hostile work environment CP objected to the advances, comments, or hostile atmosphere When the advances, comments, or atmosphere persisted, CP reported the situation to ER's management ER, although aware of the sexual harassment, made no good-faith effort to correct the conditions SuspensionS5 CP belongs to a protected group CP was suspended Others similarly situated but not of CP's group were not suspended ER cannot explain the difference, or the explanation is pretext TenureT1 CP is a member of a protected group CP was eligible for tenure consideration and applied CP was denied tenure Others similarly situated but not of CP's group were granted tenure ER cannot explain the difference, or the explanation is pretext Terms and Conditions of EmploymentT2 CP belongs to a protected group CP was denied equal terms or conditions of employment Others similarly situated but not of CP's group were extended the terms or conditions denied to CP ER cannot explain the difference, or the explanation is pretext Testing — Disparate TreatmentT3 CP belongs to a protected group CP participated in a testing process CP failed or scored poorly because the test was administered in a biased or unequal manner Others not of CP's group scored higher by benefiting from the unequal or biased test administration ER cannot explain the differences in treatment, or the explanation is pretext Testing — Adverse ImpactT3, AI CP belongs to a protected group CP participated in an employment-related testing process CP failed or scored poorly Statistical analysis of final scores shows an adverse impact on CP's group ER cannot establish that the test is valid under the Uniform Guidelines for Employee Selection TrainingT4 CP is a member of a protected group CP was qualified for and applied for, or sought admittance to, a training course or program Others similarly situated but not of CP's group were admitted to training ER cannot explain the difference, or the explanation is pretext Union RepresentationU1 CP belongs to a protected group CP is a member or was otherwise entitled to representation CP sought the union's assistance in a grievance or dispute The union did not represent CP in a diligent fashion Others similarly situated but not of CP's group have been or are being represented diligently The union cannot explain the difference, or the explanation is pretext WagesW1 CP belongs to a protected group CP was paid less than others similarly situated but not of CP's group The positions involved required substantially equal skill, effort, and responsibility ER cannot explain the difference in treatment, or the explanation is pretext

Elements of Proof · Workplace EEOBy-the-Book Workplace Investigations

Reference guide — use with counselPrecision in Process. Integrity in Practice.

How to use this guide

Reading the elements of proof

Each claim follows a three-part framework. Work them in order. Where the respondent cannot explain a difference in treatment, or the explanation is a pretext, a violation may be found.

Step 1

Prima facie case

What the charging party must establish to raise an inference of discrimination.

Step 2

Rebuttal

The legitimate, nondiscriminatory reason the employer offers in response.

Step 3

Pretext

The showing that the employer’s reason is a cover for discrimination.

CP = Charging Party / Complainant · ER = Employer / Respondent

Use with counsel

This guide states the elements under federal EEO law. State and local law may add protected classes or apply different standards. Measure conduct against your organization’s policy first, and confirm the governing legal standard with counsel before reaching conclusions.

Part 1

Core Frameworks

The analytical models: disparate treatment, disparate impact, and disability coverage.

I. Disparate Treatment

Disparate treatment occurs when an employer treats a CP differently because of a protected characteristic. A claim may be established through circumstantial or direct evidence.

A. Circumstantial Evidence — Hiring / Promotion

Prima Facie Case

CP is a member of a protected class
CP applied for a position for which CP met the stated qualifications
CP was rejected
ER filled the position or continued to seek applicants with similar qualifications (ER's selection of a person outside CP's protected class supports an inference of discrimination, though this is not always a required element)

Rebuttal

ER articulates a legitimate, nondiscriminatory reason for rejecting CP

Pretext

The reasons advanced by ER are a pretext to hide discrimination. Examples:

ER's reason is not believable
Similarly situated individuals outside CP's class were treated differently
Evidence of bias by ER's decision makers toward persons of CP's class
Statistics showing underemployment of members of CP's class (helpful but usually not determinative)

Note

CP must be a member of a protected class and must have suffered adverse treatment. A claim should not be dismissed based on lack of comparative evidence if CP was not in a position to have access to such evidence.

B. Circumstantial Evidence — Discharge / Discipline

Prima Facie Case

CP is a member of a protected class
CP was performing at a satisfactory level
CP was discharged or otherwise disciplined
CP was replaced by an employee outside the protected class (not always a required element)

Rebuttal

ER articulates a legitimate, nondiscriminatory reason for discharging or disciplining CP

Pretext

The reasons advanced are a pretext to hide discrimination (see examples in Section I.A above).

C. Direct Evidence of an Exclusionary Policy (Title VII / ADEA)

Prima Facie Case

Testimony or documentary evidence of an employment policy or practice to exclude CP from a job or otherwise adversely treat persons in CP's protected class

Rebuttal

ER disproves the discriminatory policy or practice, or proves a statutory defense such as BFOQ (Bona Fide Occupational Qualification)

Note

Under the ADA, an employer can justify a blanket exclusionary policy if it proves the policy is job-related and consistent with business necessity, and that the particular CP could not perform the job even with a reasonable accommodation.

D. Mixed Motives Defense

Prima Facie Case

Circumstantial or direct evidence proves that discrimination against CP on the basis of their protected class was a motive in the challenged action

Rebuttal

ER is unable to discredit proof of discriminatory motive but attempts to prove it would have taken the same action even without the discriminatory motive

Relief (Title VII, ADA, EPA)

ER is liable at minimum for injunctive relief and attorney's fees. If ER proves the challenged action was also based on a legitimate motive that would have independently produced the same action, ER may avoid liability for reinstatement, back pay, or damages. If ER cannot prove this, it is liable for full relief.

Note

The mixed motive theory is not available under the ADEA following Gross v. FBL Financial Services. Under the ADEA, CP must establish that age was the 'but-for' cause of the employer's action.

E. After-Acquired Evidence of Legitimate Motive

Proof

CP proves through circumstantial or direct evidence that discrimination was the true motive operating at the time of the challenged action.

Relief

If ER proves a legitimate basis for the challenged action discovered after-the-fact, and that this evidence would have led to the same action regardless of the discrimination, CP is usually not entitled to reinstatement. Back pay and compensatory damages (other than emotional harm) are limited to the period prior to discovery of the after-acquired evidence.

II. Disparate Impact

Disparate impact occurs when a neutral employment practice has a disproportionate adverse effect on a protected group, even absent discriminatory intent.

A. Disparate Impact Under Title VII

Prima Facie Case

A neutral employment practice has a disproportionate adverse effect on CP's protected class

Rebuttal

ER proves the challenged practice is job-related and consistent with business necessity

Alternatives

There is an alternative employment practice that would be substantially as effective but would have less adverse impact.

B. Disparate Impact Under the ADEA

Note

The disparate impact theory is available under the ADEA, but the scope of liability is narrower than under Title VII.

Prima Facie Case

A neutral employment practice has a disproportionate adverse effect on older workers
CP must isolate and identify the specific employment practice(s) allegedly responsible for the observed statistical disparities

Rebuttal

ER shows the practice is based on reasonable factors other than age (RFOA). This standard is narrower than the Title VII business necessity test — the RFOA defense does not require ER to show there are no alternative practices with less adverse impact.

Note

Investigators handling possible ADEA disparate impact claims should consult with Legal counsel. The EEOC regulation at 29 CFR Part 1625 defines the RFOA defense.

C. Discriminatory Qualification Standards and Selection Criteria (ADA)

Prima Facie Case

CP has a physical or mental impairment that substantially limits one or more major life activities
A neutral qualification standard or selection criterion screens out CP on the basis of their disability, and CP satisfies the other job requirements

Rebuttal

ER proves the challenged standard is job-related and consistent with business necessity
ER proves CP could not meet the standard even with a reasonable accommodation

Note

Investigators should refer to ADAAA regulations at 29 CFR Part 1630 for guidance on qualification standards under the ADA Amendments Act.

III. Establishing Disability Coverage Under the ADAAA

Before reaching the merits of a disability discrimination claim, investigators must confirm that CP's impairment qualifies as a 'disability' under the ADA Amendments Act (ADAAA). There are three coverage prongs: (1) actual disability, (2) record of a disability, and (3) regarded as having a disability.

A. Impairments on the EEOC Per Se Disability List [29 CFR § 1630.2(j)(3)(iii)]

Rule

If CP has an impairment on the per se list AND the impairment is either (a) readily observable, or (b) supported by medical documentation, the impairment should be concluded to be a disability under the ADAAA without further analysis.

Per se impairments include

deafness, blindness, partially or completely missing limbs, mobility impairments requiring a wheelchair, intellectual disability, autism, cerebral palsy, major depressive disorder, bipolar disorder, PTSD, obsessive compulsive disorder, schizophrenia, cancer, diabetes, epilepsy, HIV infection, multiple sclerosis, and muscular dystrophy.

B. Impairments Not on the Per Se List — Models of Proof

Models of proof

1. Substantially Limited Major Bodily Functions

Medical evidence shows the physical or mental impairment substantially limits a major bodily function, OR
A substantial limitation of a major bodily function is readily observable
If either condition is met, the impairment is a disability under the ADAAA

2. Substantially Limited Traditional Major Life Activities

CP has a physical or mental impairment, AND
Evidence shows the impairment substantially limits a traditional major life activity
Evidence may include CP's own account, medical records, or statements from persons who know CP

3. Mitigating Measures

The impairment substantially limited a major life activity before use of a mitigating measure, OR
The impairment would substantially limit a major life activity if the mitigating measure were stopped
If either condition is met, the impairment is a disability under the ADAAA

4. Episodic Impairments or Impairments in Remission

An episodic impairment or an impairment in remission would substantially limit a major life activity when active
If so, the impairment is a disability under the ADAAA

5. Record of a Disability

Evidence shows CP had an impairment that substantially limited a major life activity, OR
CP was misclassified as having such an impairment
If either condition is met, CP has a 'record of' a disability under the ADAAA

6. Regarded As Having a Disability

CP has an impairment, OR ER believed CP has an impairment
ER took an adverse action against CP
ER took the adverse action because of the actual or perceived impairment
The impairment is objectively not transitory and not minor
If all four conditions are met, CP is 'regarded as' having a disability

Part 2

Specific Claims

Wage, accommodation, retaliation, and harassment — including sexual harassment and employer liability.

IV. Other Forms of Unlawful Discrimination

A. Sex-Based Wage Disparity (Equal Pay Act)

Prima Facie Case

Unequal pay between CP and one or more employees of the opposite sex
The jobs at issue require substantially equal skill, effort, and responsibility
The jobs are performed under similar working conditions within the same establishment

Rebuttal

The wage difference is based on a seniority system, merit system, incentive system, or any factor other than sex

B. Failure to Provide Religious Accommodation (Title VII)

Prima Facie Case

CP sincerely holds a religious belief that conflicts with a job requirement
CP informed ER of the conflict and the need for accommodation
ER failed to provide a reasonable accommodation

Rebuttal

The requested accommodation would result in more than minimal (undue) hardship to ER

C. Failure to Provide Reasonable Accommodation (ADA)

Prima Facie Case

CP has a disability under prong one (impairment substantially limiting a major life activity) or prong two (record of a disability)
CP notified ER of the disability and need for accommodation
An accommodation exists that would allow CP to participate in the application process, perform the essential functions of the job, or enjoy equal benefits and privileges of employment
ER failed to provide an effective accommodation

Rebuttal

The requested accommodation (as well as any alternative effective accommodations) would pose an undue hardship

Note

Investigators should refer to ADAAA regulations at 29 CFR Part 1630.

D. Retaliation

Prima Facie Case

CP opposed what CP reasonably and in good faith believed to be an unlawful employment practice, or CP participated in the EEO process
ER subjected CP to adverse treatment
There is a causal connection between CP's protected activity and the adverse treatment (e.g., shown by the timing of adverse treatment soon after CP's protected activity)

Rebuttal

ER articulates a legitimate, nondiscriminatory reason for the adverse action

Pretext

The reasons advanced by ER are a pretext to cover a retaliatory motive. Examples:

ER's reason is not believable
Similarly situated individuals who did not oppose discrimination or participate in the EEO process were treated differently

E. Harassment (On Any Protected Basis)

Prima Facie Case

CP was subjected to unwelcome comments or conduct based on their protected class status
The conduct resulted in a tangible job action, OR was sufficiently severe or pervasive to interfere with CP's work performance and create a hostile work environment (measured by the standard of a reasonable person in CP's situation)
A basis exists for holding ER liable for the harassment

Rebuttal

ER attempts to prove: (a) the harassment did not happen, (b) CP welcomed the conduct, (c) the conduct was not sufficiently severe or pervasive, or (d) ER did not know about the harassment and cannot be held liable

Employer Liability Standards

Supervisory / management harassment

ER is automatically liable if the harassment resulted in a tangible employment action. If it did not, ER is still liable unless it proves it took reasonable care to prevent and correct the harassment promptly AND that CP unreasonably failed to take advantage of any preventive or corrective opportunities provided by ER

Co-worker harassment

ER is liable if it knew or should have known of the harassment and failed to take immediate and appropriate corrective action

Non-employee harassment

ER is liable if it knew or should have known of the harassment, failed to take immediate and appropriate corrective action, and had some degree of control over the harasser

Sexual Harassment — Consolidated

Sexual harassment takes two recognized forms. Both are actionable.

Quid pro quo

Harassment tied to a tangible employment action — hiring, firing, promotion, pay, or another significant change in employment. Where a supervisor's harassment culminates in a tangible employment action, the employer is automatically liable.

Hostile work environment

Unwelcome conduct of a sexual nature that is severe or pervasive enough to interfere with work performance and create a hostile work environment, measured by the standard of a reasonable person in CP's situation.

Elements to establish

CP was subjected to unwelcome physical advances, comments of a sexual nature, or a sexually hostile work environment
CP objected to the advances, comments, or hostile atmosphere
When the advances, comments, or atmosphere persisted, CP reported the situation to ER's management
ER, although aware of the sexual harassment, made no good-faith effort to correct the conditions

The employer-liability standards in Section IV.E (supervisory, co-worker, and non-employee) apply to sexual harassment.

Part 3

Elements by Issue Type

Quick reference for specific employment actions. Each requires CP to be a member of a protected group as the foundational element.

AdvertisingA1

CP belongs to a protected group
ER advertised a position specifying membership in a group other than CP's as a requirement, or stated a preference that would discourage CP from applying
CP was otherwise qualified for the position
ER is unable to establish a bona fide occupational qualification (BFOQ) for the group advertised

ApprenticeshipA2

CP is a member of a protected group
CP applied for an apprenticeship
CP was qualified but was not admitted
Others similarly situated but not of CP's group were admitted
ER cannot explain the difference in treatment, or the explanation is pretext

BenefitsB1

CP is a member of a protected group
CP was denied a benefit
The denied benefit was extended to others similarly situated but not of CP's group
ER cannot explain the difference, or the explanation is pretext

DemotionD1

CP belongs to a protected group
CP was demoted
Others similarly situated but not of CP's group were not demoted
ER cannot explain the difference, or the explanation is pretext

DischargeD2

CP belongs to a protected group
CP was discharged
Others similarly situated but not of CP's group were not discharged
ER cannot explain the difference, or the explanation is pretext

Constructive DischargeC1

CP belongs to a protected group
CP was subjected to an unlawful practice under the applicable statute
CP protested the unlawful actions, or ER's management was already aware of the actions
Despite awareness, ER's management did nothing to correct the conditions
Working conditions were so adverse that a reasonable person would not continue in the situation

DisciplineD3

CP belongs to a protected group
CP was disciplined
Others not of CP's group were not disciplined, or were disciplined differently for the same or similar infractions
ER cannot explain the different treatment, or the explanation is pretext

Exclusion — Union MembershipE1

CP belongs to a protected group
CP applied or attempted to join a union
CP was denied membership
Others similarly situated but not of CP's group were accepted for membership
The union cannot explain the difference, or the explanation is pretext

HarassmentH1

CP belongs to a protected group
CP was subjected to objectionable or offensive treatment by co-workers that embarrassed, ridiculed, tormented, bothered, or coerced CP because of CP's group membership
CP made ER aware of the harassment, or ER's management should have known through reasonable observation
Despite the objectionable atmosphere, ER took no corrective action
ER cannot explain its lack of corrective action, or the explanation is pretext

HiringH2

CP belongs to a protected group
ER had a vacant position
CP applied and was qualified for the position
CP was not selected, but a lesser-qualified person not of CP's group was selected

IntimidationI1

CP belongs to a protected group
CP was subjected to intimidating or offensive behavior by co-workers or management
CP made management aware, or management was or should have been aware
Despite objections or awareness, management continued to intimidate or permit intimidation of CP
ER cannot explain its actions, or the explanation is pretext

Job ClassificationJ1

CP is a member of a protected group
CP performs the same or substantially the same duties as others not of CP's group who are classified higher on the pay or status scale
ER cannot explain the difference in classification, or the explanation is pretext

LayoffL1

CP belongs to a protected group
CP was laid off
Others similarly situated but not of CP's group were not laid off
ER cannot explain the difference, or the explanation is pretext

MaternityM1

CP is or was pregnant
CP told ER she was pregnant, or ER had reason to know
ER made an adverse employment decision affecting CP
Others similar in their ability to work but not pregnant were treated differently
ER cannot explain the difference, or the explanation is pretext

PaternityP1

CP is a father with parental care responsibilities
CP sought accommodation equal to that granted to mothers with comparable responsibilities
ER denied the request or made an adverse employment decision affecting CP
Others similar in their ability to work who are mothers were treated differently
ER cannot explain the difference, or the explanation is pretext

Pay ComparabilityP2

CP is a member of a protected group
CP was paid less than others who are comparable for purposes of ER's wage and salary system
ER cannot explain the difference in pay, or the explanation is pretext

Pay — Equal Pay ActEPA

ER pays a lesser rate to one sex than to the opposite sex for substantially the same work
The work is performed in the same establishment
The work is performed under similar working conditions
The work requires equal skill, equal effort, and equal responsibility
The wage differential is not attributed to a seniority system, merit system, production-based earnings system, or a factor other than sex

PromotionP3

CP belongs to a protected group
ER had a vacant position
CP applied for or expressed interest in the position
CP was qualified for the position
CP was not selected, but a lesser-qualified person not of CP's group was selected

Qualifications — Disparate TreatmentQ1

CP is a member of a protected group
CP expressed interest in or applied for a position for which CP was qualified
After CP expressed interest, ER changed the stated qualifications such that CP was no longer qualified
Another person not of CP's group was selected
ER cannot explain the change in qualifications, or the explanation is pretext

Qualifications — Adverse ImpactQ1, AI

CP is a member of a protected group
CP applied for a position but was not qualified
The stated qualifications that CP failed to meet have an adverse impact on CP's group
ER cannot establish a business necessity to validate the qualification at issue

RecallR1

CP is a member of a protected group
CP was denied recall at the time CP was entitled to be recalled from layoff
Others not of CP's group but similarly situated were recalled
ER cannot explain the difference, or the explanation is pretext

ReferencesR2

CP is a member of a protected group
CP is a former employee or otherwise has a normal expectation of references from ER
CP received unfavorable references
Others not of CP's group but similarly situated received neutral or favorable references
ER cannot explain the difference, or the explanation is pretext

ReferralR3

CP is a member of a protected group
CP applied for or sought referral for hire, training, or apprenticeship
CP was qualified for the referral sought
ER referred others not of CP's group despite CP's qualifications, but did not refer CP
ER cannot explain the difference, or the explanation is pretext

Reasonable Accommodation — DisabilityR6

CP has a disability under prong one (impairment substantially limiting a major life activity) or prong two (record of a disability)
CP notified ER of the disability and need for accommodation
An accommodation exists that would allow CP to participate in the application process, perform the essential functions of the job, or enjoy equal benefits and privileges of employment
ER failed to provide an effective accommodation
ER has not shown that providing the accommodation would be an undue hardship

Religious AccommodationR6

CP made ER aware of CP's religious beliefs and practices
CP requested accommodation for a religious observance or practice and was denied
ER could have reasonably accommodated CP's religious observance or practice without undue hardship
ER cannot explain its failure to accommodate, or the explanation is pretext

ReinstatementR4

CP is a member of a protected group
CP is a former employee with a reasonable expectation or right to reinstatement
CP sought reinstatement
ER reinstated others similarly situated but not of CP's group, or continues to have vacant positions for which CP is qualified
ER cannot explain the difference, or the explanation is pretext

RetaliationOR

CP engaged in protected activity under the applicable statute
ER was aware of CP's participation in the protected activity
ER acted to deny CP a right or privilege, or to harm CP
There was a causal connection between CP's protected activity and ER's action
ER cannot provide a nondiscriminatory reason for the action against CP

Involuntary RetirementR5

CP is a member of a protected group
CP was forced to accept retirement
Others similarly situated but not of CP's group or age were not required to retire
ER cannot explain the disparate treatment, or the explanation is pretext

Segregated FacilitiesS1

CP is a member of a protected group
CP's group is required by instruction or practice to use separate facilities from members of other groups
ER cannot explain the segregation, or the explanation is pretext

Segregated Union LocalsS2

CP is a member of a protected group
By tradition or practice, union membership in CP's occupation has been segregated along group lines
CP is a member of such a segregated local or has been denied membership in a local union that does not admit individuals of CP's group
CP is qualified for membership by occupation or employment
ER cannot explain the segregation, or the explanation is pretext

SeniorityS3

CP is a member of a protected group
CP is entitled to a right or rights by virtue of length of employment with ER
ER refused to honor or denied CP's exercise of that right
Others similarly situated but not of CP's group were permitted to exercise their rights
ER cannot explain the difference, or the explanation is pretext

Sexual HarassmentS4

CP was subjected to unwelcome physical advances, comments of a sexual nature, or a sexually hostile work environment
CP objected to the advances, comments, or hostile atmosphere
When the advances, comments, or atmosphere persisted, CP reported the situation to ER's management
ER, although aware of the sexual harassment, made no good-faith effort to correct the conditions

SuspensionS5

CP belongs to a protected group
CP was suspended
Others similarly situated but not of CP's group were not suspended
ER cannot explain the difference, or the explanation is pretext

TenureT1

CP is a member of a protected group
CP was eligible for tenure consideration and applied
CP was denied tenure
Others similarly situated but not of CP's group were granted tenure
ER cannot explain the difference, or the explanation is pretext

Terms and Conditions of EmploymentT2

CP belongs to a protected group
CP was denied equal terms or conditions of employment
Others similarly situated but not of CP's group were extended the terms or conditions denied to CP
ER cannot explain the difference, or the explanation is pretext

Testing — Disparate TreatmentT3

CP belongs to a protected group
CP participated in a testing process
CP failed or scored poorly because the test was administered in a biased or unequal manner
Others not of CP's group scored higher by benefiting from the unequal or biased test administration
ER cannot explain the differences in treatment, or the explanation is pretext

Testing — Adverse ImpactT3, AI

CP belongs to a protected group
CP participated in an employment-related testing process
CP failed or scored poorly
Statistical analysis of final scores shows an adverse impact on CP's group
ER cannot establish that the test is valid under the Uniform Guidelines for Employee Selection

TrainingT4

CP is a member of a protected group
CP was qualified for and applied for, or sought admittance to, a training course or program
Others similarly situated but not of CP's group were admitted to training
ER cannot explain the difference, or the explanation is pretext

Union RepresentationU1

CP belongs to a protected group
CP is a member or was otherwise entitled to representation
CP sought the union's assistance in a grievance or dispute
The union did not represent CP in a diligent fashion
Others similarly situated but not of CP's group have been or are being represented diligently
The union cannot explain the difference, or the explanation is pretext

WagesW1

CP belongs to a protected group
CP was paid less than others similarly situated but not of CP's group
The positions involved required substantially equal skill, effort, and responsibility
ER cannot explain the difference in treatment, or the explanation is pretext