To prove a disparate treatment claim, an employee must first present enough evidence to allow the judge or jury to infer that discrimination took place. This is called presenting a "prima facie" case, because it seems at first appearance to be discrimination; what this evidence consists of depends on the facts, as explained below.
What is a prima facie case of disparate treatment?
Thereafter, the Washington State Court of Appeals (division 3) determined that plaintiff Davis established a prima facie case of disparate treatment based on the following three specific instances of disparate treatment: [1] First he claims his picture was not put in the paper when he was salesman of the month, as was custom.
What is a prima facie case of discrimination?
If the employee can present a prima facie case, then the employer must state a legitimate, nondiscriminatory reason for the decision. Once the employer presents such a reason, the employee must prove pretext: that the employer's stated reason is false, a mere pretext for its true motive, which is discrimination.
How do you prove disparate treatment?
To prove a disparate treatment claim, an employee must first present enough evidence to allow the judge or jury to infer that discrimination took place. This is called presenting a "prima facie" case, because it seems at first appearance to be discrimination; what this evidence consists of depends on the facts, as explained below.
What is the basis of the disparate treatment theory?
The basis of the disparate treatment theory is differences in treatment between similarly situated individuals. A comparison between similarly situated individuals is comparative evidence.
How do you prove disparate treatment?
Disparate treatment occurs when an employer treats some individuals less favorably than other similarly situated individuals because of their race, color, religion, sex, or national origin. To prove disparate treatment, the charging party must establish that respondent's actions were based on a discriminatory motive.
How do you establish a prima facie case?
The four elements required to establish a prima facie case of negligence are:The existence of a legal duty that the defendant owed to the plaintiff.The defendant's breach of that duty.The plaintiff's sufferance of an injury.Proof that the defendant's breach caused the injury.
What are the 3 factors required to establish a prima facie case for retaliation?
State and federal law require employees to prove the same three elements to establish a prima facie case of retaliation: (1) the employee engaged in statutorily-protected activity; (2) the employee suffered an adverse employment action; and (3) there was a causal relationship between the two.
What is the first step a plaintiff would establish in order to prove disparate treatment discrimination in an employment case under Title VII?
5. What is the first step a plaintiff would establish in order to prove disparate-treatment discrimination in an employment case under Title VII? A. The plaintiff would demonstrate a prima facie case of discrimination.
How can plaintiff establish a prima facie case of disparate treatment?
To establish a prima facie case of discrimination based on disparate treatment a plaintiff must show that he (1) is a member of a protected class, (2) suffered an adverse employment action, (3) met his employer's legitimate expectations at the time of the adverse employment action, and (4) was treated differently from ...
What are the four elements of a prima facie case?
Four elements are required to establish a prima facie case of negligence:the existence of a legal duty that the defendant owed to the plaintiff.defendant's breach of that duty.plaintiff's sufferance of an injury.proof that defendant's breach caused the injury (typically defined through proximate cause)
What is one way for a plaintiff to prove a disparate impact?
One way for a plaintiff to prove disparate impact discrimination is: a. by comparing the employer's workforce to the pool of qualified individuals available in the local market.
What statutory factors must be established in order to create a prima facie case?
In order to establish a prima facie case, a prosecutor need only offer credible evidence in support of each element of a crime. By contrast, a prosecutor must prove defendant's guilt as to each element beyond a reasonable doubt to win a conviction.
What are the elements of a disparate impact claim?
To establish an adverse disparate impact, the investigating agency must (1) identify the specific policy or practice at issue; (2) establish adversity/harm; (3) establish significant disparity; [9] and (4) establish causation.
What evidence is needed for discrimination?
Before EEOC can conclude that you were discriminated against, it would need to have proof that: 1. You were treated differently than someone of a different sex, race, national origin, color, religion, or age. EEOC will ask what you know about the person whom you believe was treated more favorable than you.
What is evidence of disparate impact?
Proving Disparate Impact To get a disparate impact case off the ground, the employee must present evidence that an employer's neutral policy, rule, or practice has a disproportionate negative impact on members of a protected class.
What does a plaintiff have to prove to establish a claim for national origin discrimination?
First, the Plaintiff must establish a prima facie case of discrimination by establishing the following elements: (1) she is a member of a protected class; (2) she was qualified for the position; (3) she suffered an adverse employment action; and (4) the action occurred under circumstances giving rise to an inference of ...
What is the prima facie rule?
A Latin term meaning "at first sight" or "at first look." This refers to the standard of proof under which the party with the burden of proof need only present enough evidence to create a rebuttable presumption that the matter asserted is true.
What is considered prima facie evidence?
In common law jurisdictions, a reference to prima facie evidence denotes evidence that, unless rebutted, would be sufficient to prove a particular proposition or fact. The term is used similarly in academic philosophy.
What is a prima facie determination?
Prima Facie Review. After receipting a self-petition, USCIS first determines whether the evidence submitted establishes a prima facie (“at first look”) case.
What can be used as a prima facie evidence in the court of law?
The term Prima facie is a legal term or a legal claim which is made when the prosecution has enough evidence to proceed with a trial of judgement and to prove that the defendant is guilty. The term is derived from a Latin word which means, “at first sight” or “at first view”.
What Is Disparate Treatment?
In other words, the employee must show that he or she was treated differently than other employees who don't share the same protected characteristic. In disparate treatment lawsuits, the arguments are usually over how similarly situated the comparable employees were and whether the employer's decision was made because of the employee's protected characteristic or for other reasons.
What is prima facie case?
The Prima Facie Case. The type of evidence an employee has to present to prove a prima facie case of disparate treatment discrimination depends on the facts. If there is direct evidence of discrimination, that's enough. For example, if an employer hires only female bartenders or has said it will not promote African Americans to management ...
How to prove a disparate treatment claim?
To prove a disparate treatment claim, an employee must first present enough evidence to allow the judge or jury to infer that discrimination took place.
Why is an employee denied a promotion?
For instance, an employee is denied a promotion, and the employer claims that it was because the employee lacked an MBA. If the employee who was promoted also didn't have an MBA, the employer's decision looks suspect. Remarks by decision makers.
What is shifting justification?
Shifting justifications. If an employer gives different reasons at different times for its decision, that might be enough to prove pretext. For example, an employer tells an employee that her job is being eliminated in a company-wide restructuring, but then claims at trial that she was fired for poor performance.
Why was Horacio fired?
The employer claims that he was fired because he received three customer complaints in the previous quarter. If Horacio can show that other employees who received three or more complaints in a quarter were not fired, and that those employees were not Latino, his argument looks better.
What is the pretext for discrimination?
Once the employer states a legitimate reason for the decision, the employee must prove that it's a pretext for discrimination. This doesn't mean the employee has to come up with absolute proof of an illegitimate motive. Instead, the employee has to present some evidence that calls the employer's stated reason into question and allows the jury to conclude that the employer was really motivated by discrimination. Here are some examples:
How to prove disparate impact discrimination?
A. First the plaintiff must establish a prima facie case of disparate impact discrimination. This is where it can get tricky. After showing they are a member of a protected class, the plaintiff must show, through statistical comparisons, that a particular employment practice used to select or promote employees has a “disparate impact” on members of that protected class. If the plaintiff can’t establish a PFC the employer automatically wins. B. If the plaintiff establishes a PFC, the burden then shifts to the employer, who must 1) provide evidence that the employment practice doesn’t actually cause a disparate impact, or 2) prove, by a preponderance of the evidence , that even though the practice creates a disparate impact on members of a protected class, the practice is “job related and consistent w “business necessity” Example: The Southeastern Pennsylvania Transportation Authority (SEPTA) wanted to improve the quality of its transit police officers. So it started a program that required all job applicants to pass a running test. They had to run 1.5 miles in 12 minutes. Over a three year period the average pass rate for women was 12% while the average pass rate for men was 60%. The plaintiffs were able to show through statistical comparison that the running test has a disparate impact on female applicants because they had such a higher failure rate than male applicants. SEPTA did not dispute that the test had a disparate impact on women. It defended the practice by arguing that the test was “job related and consistent with business necessity”. SEPTA argued that physical fitness was a necessity for a transit police
What does a plaintiff have to show in a protected class?
After showing they are a member of a protected class, the plaintiff must show, through statistical comparisons, that a particular employment practice used to select or promote employees has a “disparate impact” on members of that protected class.
How to compare Lanning vs. SEPTA?
SEPTA where there is an employment test, you look at the percentage of women or African-Americans or Latinx people (or members of another protected class) who passed a particular test, and then you compare that percentage to the percentage of men or the number of white applicants or employees who passed the test. And then you compare the percentages—so in Lanning, only 12% of the women who took the running test passed it, compared to 60% of the men who took it. That’s pretty clear, right? But sometimes the situation isn’t that clear cut. You can’t point to a specific test that’s weeding out a particular class of people. There just aren’t a lot of women or blacks or Latinos working in a particular job and you feel that something is not
What does a plaintiff need to prove in a disparate treatment case?
The plaintiff in a disparate treatment case need only prove that membership in a protected class was a motivating factor in the employment decision, not that it was the sole factor. If the employer proves that it had another reason for its actions and it would have made the same decision without the discriminatory factor, it may avoid liability for monetary damages, reinstatement or promotion. The court may still grant the plaintiff declaratory relief, injunctive relief, and attorneys' fees and costs. 42 U.S.C. � 2000e-5 (g) (2) (B) (i) (overruling in part Price-Waterhouse v. Hopkins, 490 U.S. 228 (1989)).
What is the burden shifting formula in McDonnell Douglas?
In the majority of cases, the plaintiff lacks direct evidence of discrimination and must prove discriminatory intent indirectly by inference. The Supreme Court has created one structure for analyzing these types of cases, commonly known as the McDonnell Douglas burden-shifting formula, which it first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and later refined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), and St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). The analysis is as follows: (1) the plaintiff must establish a prima facie case of discrimination; (2) the employer must then articulate, through admissible evidence, a legitimate, nondiscriminatory reason for its actions; and (3) in order to prevail, the plaintiff must prove that the employer's stated reason is a pretext to hide discrimination. McDonnell Douglas, 411 U. S. at 802-04; Burdine, 450 U.S. at 252-56. In the Seventh Circuit, courts generally analyze disparate treatment cases using this method, although attorneys may also use the direct method described above.
What is direct evidence?
Under the direct method, a plaintiff attempts to establish that membership in the protected class was a motivating factor in the adverse job action. Plaintiff may offer direct evidence, such as that the defendant admitted that it was motivated by discriminatory intent or that it acted pursuant to a policy that is discriminatory on its face. In most cases, direct evidence of discrimination is not available, given that most employers do not openly admit that they discriminate. Facially discriminatory policies are only permissible if gender, national origin, or religion is a BFOQ for the position in question, as discussed above. Race or color may never be a BFOQ.
How to prove pretext in a case?
Comparative evidence Plaintiff may prove pretext by offering evidence that similarly situated employees who are not in the plaintiff's protected group were treated more favorably or did not receive the same adverse treatment. The Seventh Circuit has issued differing opinions on whether the plaintiff's testimony about the comparative employees is sufficient to raise a factual issue and survive summary judgment. For example, in Collier v. Budd Co., 66 F.3d 886 (7th Cir. 1995), the employer offered evidence that the younger employees who were retained were better qualified than the plaintiff. In his deposition, the plaintiff disputed that these employees were better qualified. The court said that the resulting credibility decision was best left for the trier of fact, and reversed a summary judgment ruling for the employer. Collier at 893. On the other hand, in Russell v. Acme-Evans Co., 51 F.3d 64 (7th Cir. 1995), the court held that the plaintiff's testimony regarding the qualifications of the workers who were given the positions that plaintiff wanted was insufficient to create a factual issue and survive summary judgment given that the employer had stated that they were more qualified.
Which court case held that plaintiffs are not entitled to declaratory relief?
The Seventh Circuit recently held that in a mixed motives retaliation case, the plaintiff is not entitled to declaratory relief, injunctive relief, or attorneys fees because retaliation is not listed in the mixed motives provision of the 1991 Civil Rights Act. McNutt v. Board of Trustees of the University of Illinois, 141 F.3d 706, (7th Cir. 1998).
Is statistics admissible in disparate treatment cases?
Statistics Statistics are admissible in individual disparate treatment cases, but their usefulness depend s on their relevance to the specific decision affecting the individual plaintiff. Lindemann and Grossman, 1 Employment Discrimination Law 34.
Is race a BFOQ?
Facially discriminatory policies are only permissible if gender, national origin, or religion is a BFOQ for the position in question, as discussed above. Race or color may never be a BFOQ. A plaintiff may also proceed under the direct method by offering any of the following three types of circumstantial evidence.
How to prove prima facie discrimination?
The charging party can establish a prima facie case of discrimination by proving that past discrimination occurred and that it is being continued by the present operation of a neutral employment system. The past discrimination could have occurred before or after the effective date of Title VII. The neutral employment system will generally be a wage, pension, or seniority system, although it can be any policy or practice that operates to freeze the effects of prior discriminatory practices.
Why does a respondent argue that a charging party was qualified for a position in question but it selected another?
In some instances, a respondent will concede that a charging party was qualified for a position in question but argue that it selected another person because the selectee was better qualified. This defense must be examined carefully. Respondent must state precisely the way (s) in which the selectee was more qualified than the charging party. This defense may be a pretext for discrimination.
What is the adverse impact theory of discrimination?
Discrimination can result from neutral employment policies and practices which are applied evenhandedly to all employees and applicants, but which have the effect of disproportionately excluding women and/or minorities. Dothard v. Rawlinson, 433 U.S. 321, 14 EPD ¶ 7633 (1977); Griggs v. Duke Power Co., 401 U.S. 424, 3 EPD ¶ 8137 (1971). This is the adverse impact theory of discrimination. Once adverse impact is established, the respondent must justify the continued use of the procedure (s) causing the adverse impact as a business necessity.
What is a no cause letter of determination?
If a seniority system was instituted prior to the effective date of Title VII, and there is no evidence showing discriminatory intent in the creation or maintenance of the system, charges based on perpetuation of past discrimination by the seniority system should be resolved with a no cause Letter of Determination.
Does Title VII discriminate against race?
Title VII only prohibits discrimination based on race, color, religion, sex, or national origin. If in isolated instances a respondent discriminates against the charging party and other similarly situated individuals in favor of a relative or friend, no violation of Title VII has occurred.
Is discrimination against handicapped persons mentioned in the discussion of accommodation?
Discrimination against the handicapped is mentioned in the discussion of accommodation, primarily to draw a distinction between the accommodation requirement contained in Title VII, and the requirement contained in the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 701 - 796.
Is the perpetuation of past discrimination the same as the adverse impact theory?
The perpetuation of past discrimination theory is similar to the adverse impact theory in that neither theory is concerned with the respondent's present motivation. There is no requirement that the charging party prove the presence of a discriminatory motive.
How to quantify disparity?
Often a disparity can be quantified using statistical evidence. See Darensburg, 636 F.3d at 519 (explaining that appropriate statistical evidence can provide a “reliable indicator of a disparate impact” (citing New York Urban League, 71 F.3d at 1038)). And the majority of contemporary disparate impact claims involve comparative evidence based on statistical analysis. It is important to remember, however, that even where statistical evidence is available, circumstantial evidence can be a critical supplement. As the Supreme Court has cautioned, the usefulness of statistics “depends on all of the surrounding facts and circumstances.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 340 (1977).
What is disparate impact analysis?
Accurate disparate impact analyses begin with identifying the policy or practice that allegedly caused the disparate harm. Inclusive Communities, 135 S. Ct. at 2523 (“a disparate-impact claim that relies on a statistical disparity must fail if the plaintiff cannot point to a defendant’s policy or policies causing that disparity”). Although plaintiffs’ claims succeed or fail based on whether they have established adversity/harm, significant disparity, and causation, identifying the policy at issue in forms the evaluation of the evidence put forth at these three stages.
What is Title VI adversity?
Courts have frequently identified Title VI adversity/harm where recipients’ policies or practices result in fewer services or benefits, or inferior service or benefits. In this type of case, the recipient denies the plaintiff something deemed desirable. For example, in Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1986), the court held that improper placement in special education classes had a “definite adverse effect” because such “classes are dead-end classes which de-emphasize academic skills and stigmatize children improperly placed in them.” Id. at 983; see also Elston, 997 F.2d at 1412 (holding that stigmatization of black children and the risk of closure of a school in a black community, among other things, “might well constitute a disparate impact”). While these cases often arise in the education context, many different types of inferior services and benefits will satisfy the adversity requirement. See, e.g., Meek v. Martinez, 724 F. Supp. 888, 906 (S.D. Fla. 1987) (minority seniors harmed when receiving less financial aid for community services than non-minority peers); Campaign for Fiscal Equity, Inc. v. New York, 86 N.Y.2d 307, 323–24, 655 N.E.2d 661, 631 N.Y.S.2d 565 (1995) (adversity properly alleged where minority students received less state financial aid as a group and per pupil than their nonminority peers); Sandoval v. Hagan, 197 F.3d 484, 508 (11th Cir. 1999) (lack of drivers’ licenses adversely affects individuals in the form of lost economic opportunities, social services, and other quality of life pursuits), rev’d on other grounds sub nom. Alexander v. Sandoval, 532 U.S. 275 (2001); Maricopa Cty., 915 F. Supp. 2d at 1081 (adversity properly alleged where limited English proficient Latino inmates had diminished access to jail services such as sanitary needs, food, clothing, legal information, and religious services).
Why are federal agencies uniquely qualified to provide such guidance?
Federal funding agencies are uniquely qualified to provide such guidance because of their expert knowledge of their funded programs. Courts normally defer to agency guidance in evaluating specific types of disparate impact. See, e.g., S. Camden Citizens in Action, 145 F. Supp. 2d 446, 496 (D.N.J. 2001) (“In the absence of guiding legal precedent on the question of what constitutes a ‘substantial legitimate justification’ or a ‘legitimate nondiscriminatory reason’ in the context of this case, I shall look to EPA regulations and practice.”). As in all aspects of Title VI investigation, agencies should consider not only the recipient’s perspective, but also the views of the affected community in assessing whether benefits to the community outweigh the policy’s disproportionate adverse effects. See, e.g., EPA Investigations Guidance, 65 Fed. Reg. at 39,683.
How to ensure compliance with Title VI?
Agencies should remember that recipients may be able to ensure compliance with Title VI by mitigating any adverse harm that may affect the protected group. Informal resolution efforts often involve identification of mitigation efforts which, if applied, would result in compliance with Title VI by reducing or eliminating adversity/harm.
Why do agencies not address each element in rank order?
Agencies need not address each element in rank order because lack of evidence of any one of these elements results in a “no violation” finding and concludes the analysis. However, in many cases understanding the nature of the harm is an important first step to evaluating its impact on a protected class. The sections below provide additional insight into the potential benefits of proceeding in a particular order through the investigation and analysis.
How to determine if a policy is broader than the action identified by the complainant?
One method to discern whether the legally relevant policy or practice is broader than the action identified by the complainant involves identifying the negative effect that the challenged action has on the protected group. For example, in New York City Environmental Justice Alliance, the court rejected a challenge to New York City’s decision to scale back a community garden program benefitting minority neighborhoods. Although the precise action challenged was the City’s closing or selling of community gardens, the plaintiffs identified the negative effect of the action as the reduction of the amount of open space/green space available to minority community districts. 214 F.3d at 71. The court saw the issue as the City’s overall policy about green spaces, not its decision to sell or close community gardens. So viewed, the City would not violate Title VI unless the overall open space/green space policy disadvantaged predominantly minority neighborhoods significantly more than predominantly white neighborhoods. The plaintiffs’ statistics only included calculations that compared available space from community gardens, parks, and playgrounds, and excluded space from regional parks available to the community districts. Id.
What can an investigative agency look for in proving intentional discrimination?
Investigating agencies can look tocase law for guidanceon provingintentional discrimination,but are not bound by case law concerning burden shifting betweenplaintiff and defendant (that is, as between a complainantand a recipient). An agency need not usethe same sequential processas courts, where a plaintiff first offers primafacie evidence and the defendant then offersrebuttal evidence. Rather, an agency has discretionto gather and evaluate all relevantevidence as part of its initial investigation, or may choose to makea preliminary primafacie finding then require recipients to articulate defenses.
What is direct evidence of discrimination?
Short of an express classification, other direct evidence of discrimination includes “any statementor documentwhich shows on its face that animproper criterion served as the basis … for [an] adverse … action.” Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 (5th Cir.2003). On the other hand, “remarksby non-decisionmakersor remarksunrelated to the decision makingprocess itself are not direct evidence of discrimination.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).
What is the Arlington Heights mosaic of factors?
TheArlington Heights mosaicoffactors.[6] This methodof proof, originally developed for Equal Protection Clause cases, uses anumber of different typesof circumstantialevidencethat, takencollectively, candemonstrate that the recipient acted, atleast in part, because of race,color, or nationalorigin. This frameworkis most commonly applied in cases alleging discrimination against a group. Agencies canusethis methodfor many different types of cases, butwill find itparticularly usefulwherethecomplaintis about thetreatment of a group, not individuals, and the investigation reveals manydifferent kinds of evidence. Agencies should be sure to consider thismethodwhere a complaint challenges an expressly neutral practice thathas an effect on a largerclassdefined by race, color,or national origin. For instance, a complaintalleging that a state agency adopted a new policy with the purpose of reducing the numberof minorityparticipants could be investigatedusing this method. See Section B.2.
When does intentional discrimination occur?
Generally, intentional discriminationoccurs when the recipientacted,atleast inpart,be causeofthe actual or perceived race, color,ornationaloriginof the alleged victimsof discriminatorytreatment. Doe ex rel. Doe v. Lower Merion Sch. Dist.,665 F.3d 524, 548 (3d Cir. 2011). Whilediscriminatory intentneednotbetheonlymotive, aviolationoccurswhentheevidence showsthattheentityadoptedapolicyatissue “‘because of,’ not merely ‘in spite of,’ its adverse effectsupon an identifiable group.” Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979). Some assumethat the intentional use of race should be carefully scrutinized only when the intent is to harm a group or an individualdefined by race, color,or nationalorigin. Thatis nottrue:the SupremeCourt inCity of Richmond v. J.A. Croson Co.,488 U.S. 469, 493 (1989), and Adarand Constructors, Inc., v. Pena,515 U.S. 200, 226 (1995), established that any intentional use ofrace,whetherfor maliciousor benignmotives,issubject to themostcareful judicial scrutiny.[5] Accordingly, therecordneednotcontain evidence of “bad faith, ill will or any evil motiveon thepart of the [recipient].” Williamsv. CityofDothan, 745 F.2d 1406, 1414 (11th Cir. 1984).
Does direct evidence of discriminatory intent require a virtual admission of illegality?
This type of direct evidence ofdiscriminatoryintent does not require “a virtual admissionof illegality.” Venters, 123 F.3d at 973. Forexample, directevidence need not take the form of an admissionwhere the defendant states “I’m [taking this adverse action] because you’re in a protected group.” Sheehan v. Donlen Corp.,173 F.3d 1039, 1044 (7th Cir. 1999);see Venters,123 F.3d at 973. The court inVentersexplained that “the evidence need not be this obvious to qualify as direct evidence.” Id. And the Sheehan courtexplained why: because such a requirement“would cripple enforcementof the ... discriminationlaws.” Sheehan, 173 F.3d at 1044. The direct evidence of suchremarksmust,however,establish that race was an important factormotivating the challenged action. “Strayremarks,” “derogatorycomments,” even those uttered by decision-makers,maynot constitute directevidence of discriminationif unrelated to the adverse decision. Price Waterhouse,490 U.S. at 277 (O’Connor,J., concurring);Fuentesv. Perskie, 32 F.3d 759, 767 (3d Cir. 1994). Evidence ofsuchremarksor comments is nevertheless important in an intent case, and can help to establish circumstantialor indirect evidence of intent. Doe v. C.A.R.S. Prot. Plus, Inc.,527 F.3d 358, 368 (3d Cir. 2008); Fitzgerald v. Action, Inc.,521 F.3d 867, 877 (8th Cir. 2008) (same);see also Lounds v. Lincare, Inc., 812 F.3d 1208, 1224(10th Cir. 2015) (citing Kerri Lynn Stone, Taking in Strays: A Critique of the StrayCommentDoctrineinEmploymentDiscrimination Law,77 Mo. L. Rev. 149, 177 (2012) (“[S]tray remarkscan prove to be invaluable insightsinto biases at every level of consciousness that maybe rife but invisiblewithin theworkplace.... [They] may bespeak a workplace culture in which certain language orsentiments are tolerated and perhaps encouraged or rewarded.”)).
Is direct evidence a clean case?
A clean “directevidence” case—where directevidence alone establishes thatdiscrimination was the sole reason for an adverse decision—is rare. Price Waterhouse,490 U.S. at 271 (“[D]irect evidence of intentionaldiscrimination is hard tocome by.”) (O’Connor, J., concurring). After all, decision-makersseldomwill admitthatthey based decisions on raceorethnicorigin, or used either as a criterion. See, e.g.,SECSYS, LLC v. Vigil,666 F.3d 678, 686 (10th Cir. 2012).