This article will discuss an overview of race discrimination under Title VII of the Civil Rights Acts of 1964 and 1991. It will also analyze the elements necessary to prove a case of racial discrimination under this statute. In addition, the chapter will outline the necessary elements for proving a case of reverse racial discrimination. The chapter will also set forth what to do if you believe you have been discriminated against and what to do if you have been accused of racial discrimination.
The law that prohibits employers from discriminating against employees on the basis of their race is Title VII. “Title VII prohibits an employer from discrimination against any individual on the basis of “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a).” Harry v. City of Philadelphia, 2004 WL 1387319, *3 (E.D.Pa.,2004). In addition, most states have local fair employment laws that parallel Title VII with regard to the prohibition of race discrimination.
ELEMENTS OF CAUSE OF ACTION
A plaintiff alleging race discrimination may prove a Title VII discrimination case by either direct evidence of discrimination or indirect evidence of discrimination. If a plaintiff is relying on indirect evidence, the plaintiff would then employ the McDonnell-Douglas burden-shifting analysis. The first step under any such analysis would be to prove a prima facie case. “Actions brought under Title VII alleging racial discrimination may be supported with direct evidence, e.g., a defendant’s oral statements demonstrating her discriminatory motivation. See Kendrick, 220 F.3d at 1225. Alternatively, a plaintiff may support her Title VII claim of racial discrimination with indirect or circumstantial evidence. Id. When indirect or circumstantial evidence is the basis of a Title VII claim, we evaluate the evidence under the McDonnell Douglas framework. Id.; McDonnell Douglas, 411 U.S. at 802-04, 93 S.Ct. 1817.” Stover v. Martinez, 382 F.3d 1064, 1075 -1076 (10th Cir.2004).
Proving a prima facie case of racial discrimination under Title VII is similar to the prima facie case required in sex discrimination cases under Title VII. “To prove a Title VII racial discrimination claim, the plaintiff must prove the following elements to make out a prima facie case: (1) she is a member of a protected class; (2) she was qualified for her position; (3) she suffered an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination. Fisher v. Vassar College, 114 F.3d 1332, 1344 (2d Cir.1997).” Sample v. Wal-Mart Stores, Inc., 273 F.Supp.2d 185, 188 (D.Conn.,2003).
When an employee’s case is premised upon the claim that he/she was terminated based upon a neutral employment policy, to establish a prima facie case of race discrimination the employee must establish that the discharge occurred under circumstances giving rise to an inference of discrimination. “[T]o establish a prima facie claim of disparate treatment under a facially neutral employment policy, it is necessary for the employee to produce evidence of four elements: (1) she was a member of a protected class; (2) she was qualified for her position; (3) she was discharged; and (4) the termination occurred under circumstances giving rise to an inference of discrimination. Shumway v. United Parcel Service, Inc., 118 F.3d 60, 63 (2d Cir.1997).” Sample, 273 F.Supp.2d at 188. See also, Harry v. City of Philadelphia, 2004 WL 1387319, *3 (E.D.Pa.,2004) (“In order to make out a prima facie case of racial discrimination, Harry must satisfy a four-prong test: he must establish that (1) he is a member of a protected class, (2) that he was qualified to take the relevant examinations or be placed on the relevant eligibility lists, (3) that he was subjected to an adverse employment action despite being qualified, and (4) that the City allowed other individuals with qualifications similar to his to take the examinations or be placed on the eligibility lists “under circumstances that raise an inference of discriminatory action.” Id.; see also Hampton v. Borough of Tinton Falls Police Dept., 98 F.3d 107, 112 (3d Cir.1996) (describing the fourth prong as requiring plaintiff to establish that her termination occurred under circumstances giving rise “to an inference of unlawful discrimination”) (quoting Tex. Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). The elements of a prima facie case must be established by a preponderance of the evidence. See St. Mary’s, 509 U.S. at 506.
Sometimes plaintiffs claim racial discrimination based upon what they are paid. To establish a prima facie case of racially disparate treatment with respect to compensation, the employee must show that white employees were treated differently i.e., reached certain pay levels faster under circumstances ‘nearly identical’ to his. C.f. Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir.1995) (citation omitted)(disparate treatment in the context of a work-rule violation case).” Pierce v. Texas Dept. of Transp., 2002 WL 31757635, *7 (N.D.Tex.,2002).
REVERSE RACE DISCRIMINATION
Courts have held that in addition to members of protected groups being able to sue for race discrimination, white employees may also state a claim for reverse discrimination. Thus, both minorities and non-minorities may sue for race discrimination under Title VII. “Title VII protects members of both majority and minority groups from race-based discrimination.” Taken v. Oklahoma Corp. Comm’n, 125 F.3d 1366, 1368 (10th Cir.1997); Stover v. Martinez, 382 F.3d 1064, 1075 (10th Cir.2004).
In reverse race discrimination cases the prima facie case differs slightly from a traditional race discrimination prima facie case. The first element requires, rather than showing membership in a minority, a showing that the employer discriminates against the majority. “In Notari, this court held that in cases of reverse racial discrimination, instead of showing minority group membership, a plaintiff must ‘establish background circumstances that support an inference that the defendant is one of those unusual employers who discriminates against the majority.’ 971 F.2d at 589. In modifying the first prima facie requirement, this court recognized that members of the majority group are not necessarily entitled to a presumption of discrimination afforded to members of a minority group. Id.; Reynolds, 69 F.3d at 1534.” Mattioda v. White, 323 F.3d 1288, 1292 (10th Cir.2003); See also, Stover v. Martinez, 382 F.3d 1064, 1076 (10th Cir.2004)(“In lieu of demonstrating that the reverse discrimination plaintiff belongs to a racial minority to satisfy the first condition of the McDonnell Douglas prima facie case, she may instead “identify background circumstances that … [show] that the defendant is one of those unusual employers who discriminate against the majority.” Reynolds v. School Dist. No. 1, 69 F.3d 1523, 1534 (10th Cir.1995). Alternatively, a reverse discrimination plaintiff may satisfy the first prong of McDonnell Douglas by presenting “indirect evidence sufficient to support a reasonable probability, that but for the plaintiff’s status the challenged employment decision would have favored the plaintiff.” Notari v. Denver Water Dept., 971 F.2d 585, 590 (10th Cir.1992).
As with other Title VII discrimination cases, courts apply the familiar three-prong burden shifting McDonnell-Douglas analysis to race discrimination cases. “If Aragon succeeds in establishing a prima facie case, the burden of production shifts to Republic to articulate a legitimate, nondiscriminatory reason for terminating Aragon’s employment. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If Republic does so, Aragon must demonstrate that Republic’s articulated reason is a pretext for unlawful discrimination by ‘either directly persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.’ Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1124 (9th Cir.2000) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)).” Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 658 -659 (9th Cir.2002); See also, Harry v. City of Philadelphia, 2004 WL 1387319, *3 (E.D.Pa.2004)(“To prevail on his Title VII claim, Harry must present circumstantial evidence of discrimination using the familiar burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Pursuant to McDonnell Douglas, a plaintiff must first provide evidence to support a prima facie case of discrimination by a preponderance of the evidence. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). If plaintiff succeeds in establishing a prima facie case, defendant then must “articulate some legitimate, nondiscriminatory reason for the employee’s [termination].” McDonnell Douglas, 411 U.S. at 802. If defendant does so, the burden shifts back to plaintiff to show that the reasons proffered by defendant were not its true reasons, but rather a pretext for discrimination.
Although McDonnell-Douglas requires a burden-shifting analysis, it does not shift the ultimate burden of persuasion. “If Aragon demonstrates pretext, then the burden-shifting framework disappears, and the only remaining issue is ‘discrimination vel non.’ Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 714, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983)). While the burden of production may shift, the ‘ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.’ Burdine, 450 U.S. at 253, 101 S.Ct. 1089.” Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 659 (9th Cir.2002).
ANALYSIS OF PRIMA FACIE CASE REQUIREMENTS
What is the purpose of requiring plaintiffs to prove a prima facie case? “The purpose of the prima facie case is to “eliminate the most obvious, lawful reasons for the defendant’s action (i.e., the position that an applicant sought was not filled for economic reasons, the applicant was not qualified, no adverse action such as failure to hire or firing was actually taken, etc.).” Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 352 (3d Cir.1999) (citing Burdine, 450 U.S. at 253-54 (“The prima facie case serves an important function in the litigation: it eliminates the most common nondiscriminatory reasons for the plaintiff’s rejection.”)).” Harry v. City of Philadelphia, 2004 WL 1387319, *3 (E.D.Pa.,2004).
What qualifies as a tangible employment action for the purposes of establishing a prima facie case of racial discrimination? “The Supreme Court has defined a tangible employment action as ‘a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’ Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).” Harry v. City of Philadelphia, 2004 WL 1387319, *5 (E.D.Pa.,2004). Some circuits don’t require solely financial impact but allow plaintiffs to demonstrate other repercussions as well. “As the Third Circuit has explained, ‘Although direct economic harm is an important indicator of a tangible adverse employment action, it is not the sine qua non. If an employer’s act substantially decreases an employee’s earning potential and causes significant disruption in his or her working conditions, a tangible adverse employment action may be found.’ Durham Life Ins. Co. v. Evans, 166 F.3d 139, 153 (3d Cir.1999) (citation omitted).” Harry v. City of Philadelphia, 2004 WL 1387319, *5 (E.D.Pa.,2004).
What does it mean under a prima facie case that the employee was qualified for the position? “When evaluating whether a plaintiff is ‘qualified’ for the purposes of a prima facie case, courts must rely upon ‘objective’ factors. See Sempier v. Johnson & Higgins, 45 F.3d 724, 729 (3d Cir.1995) (citing Weldon v. Kraft, Inc., 896 F.2d 793, 798 (3d Cir.1990)). Subjective qualities, conversely, such as ‘leadership or management skill,’ are ‘better left to the later stage of the McDonnell Douglas analysis,’ Weldon, 896 F.2d at 798, because ‘subjective evaluations ‘are more susceptible of abuse and more likely to mask pretext.’ Id. (quoting Fowle v.. C & C Cola, 868 F.2d 59, 64-65 (3d Cir.1989)).” Harry v. City of Philadelphia, 2004 WL 1387319, *3 (E.D.Pa.,2004).
Courts have laid out the requirements for plaintiffs to demonstrate that they were treated less favorably than similarly situated employees. Although showing that someone not in the protected class was treated more favorably is a common method for demonstrating an inference of discrimination, it is by no means the only method. “Common circumstances giving rise to an inference of unlawful discrimination include the hiring of someone not in the protected class as a replacement or the more favorable treatment of similarly situated colleagues outside of the relevant class.” Bullock v. Children’s Hosp. of Phila., 71 F.Supp.2d 482, 487 (E.D.Pa.1999). “Although a plaintiff may make out a prima facie case with such evidence, … neither of these is required.” Id. (emphasis in original) (citing Pivirotto, 191 F.3d at 356-57). Indeed, in Pivirotto the Third Circuit made clear that the showing required to satisfy the fourth element of a plaintiff’s prima facie case will vary depending upon the circumstances. Pivirotto, 191 F.3d at 357 (“[W]e have repeatedly emphasized that the requirements of the prima facie case are flexible, and in particular that ‘the fourth element must be relaxed in certain circumstances”) (quoting Torre v. Casio, Inc., 42 F.3d 825, 831 (3d Cir.1994)).” Harry v. City of Philadelphia, WL 1387319, *5-6 (E.D.Pa.,2004).
Thus, the fourth element of the prima facie case does not require a showing that the employer hired an employee outside the protected class, but merely that the adverse employment action occurred under circumstances giving rise to an inference of discrimination. “Defendant argues that the fourth prong of this test requires plaintiff to show “that similarly-situated non-members of the protected class were treated more favorably.” However, as the Third Circuit explained in Sarullo, “that is not the current law in this or the majority of the circuits.” Sarullo, 352 F.3d at 798 n. 7 (citing Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 354 (3d Cir.1999)). In fact, the court “explicitly rejected a requirement that a plaintiff prove he was replaced by someone outside the protected class to prove a prima facie case of discrimination.” Id. (citing Pivirotto, 191 F.3d at 352). The court went on to explain that “We require only that the plaintiff show that the employer continued to seek out individuals with similar qualifications after refusing to rehire the plaintiff under circumstances that raise an inference of unlawful discrimination.” Id. (citing Pivirotto, 191 F.3d at 352). Harry v. City of Philadelphia, 2004 WL 1387319, *3 (E.D.Pa.,2004).
One of the questions that arises in proving this fourth element is what is a similarly situated employee. “In order to satisfy the similarly situated or comparability aspect of the fourth prong of the racial discrimination count, Plaintiff must demonstrate that she and the other two building custodians are “similarly-situated in all respects.” Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.1992). Federal courts have routinely held that employees are not similarly situated if they have differing amounts of seniority. See Williams v. Widnall, 173 F.3d 431, 1999 WL 68574, *9 (6th Cir.1999), unpublished, (other employee had more seniority and thus was not similarly situated to plaintiff); see also Martin v. Teledyne Brown Engineering, 924 F.Supp. 1131, 1138 (S.D.Ala.1996) (black supervisory employee failed to establish prima facie case of race discrimination, since he presented no evidence of similarly situated white employee being treated differently; although employer retained two white supervisors when they laid black employee off, those supervisors had more seniority than he); Redmond v. Day & Zimmerman, Inc., 897 F.Supp. 1380, 1385 (D.Kan.1995) (retained employee was not similarly situated in terms of seniority to plaintiff, who was laid off in a reduction-in-force); Marcano-Rivera v. Pueblo Intern., Inc., 232 F.3d 245, 252 (1st Cir.2000) (plaintiff failed to make prima facie showing of discrimination as reduction in force was implemented blindly, solely according to seniority within each job classification). Homes-Naples v. Girard Bd. of Educ., 212 F.Supp.2d 743, 750 (N.D.Ohio,2001).
In applying the McDonnell-Douglass three-prong analysis, one issue that arises is how does a plaintiff prove pretext? In order to survive summary judgment at this stage, plaintiff may meet his burden of establishing pretext in one of two ways. He must point “to some evidence, direct or circumstantial, from which a factfinder could reasonably either: (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action” [hereinafter “the Fuentes test”]. Jones v. Sch. Dist. of Phila., 198 F.3d 403, 413 (3d Cir.1999) (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.1994) and Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1067 (3d Cir.1996) (en banc)). To establish pretext under the first approach, the plaintiff “must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its actions that a reasonable factfinder could rationally find them unworthy of credence.” Id. (citing Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108-09 (3d Cir.1997) (en banc)). It is insufficient to show simply that defendant’s employment decision was wrong or mistaken, “since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent or competent.” Id. Plaintiff may, however, establish pretext by introducing evidence that an employer’s proffered reason was “not merely wrong, but that it was ‘so plainly wrong that it cannot have been the employer’s real reason.” Id. (citing Keller, 130 F.3d at 1109).
Under the second approach of the Fuentes test, a plaintiff may prove pretext by showing that discrimination was “more likely than not” the motivation behind defendant’s actions. See Id. at 413. In addition to such direct evidence, the Third Circuit has held that a plaintiff may, by way of indirect evidence, “show that the employer has previously discriminated against [the plaintiff], that the employer has previously discriminated against other persons within the plaintiff’s protected class, or that the employer has treated more favorably similarly situated persons not within the protected class.” Id. (citing Simpson v. Kay Jewelers, Inc., 142 F.3d 639, 645 (3d Cir.1998)). Harry v. City of Philadelphia, 2004 WL 1387319, *7 (E.D.Pa.,2004). See also, Homes-Naples v. Girard Bd. of Educ. , 212 F.Supp.2d 743, 749 (N.D.Ohio,2001)(“In order to demonstrate pretext, a plaintiff must do more than merely prove that a defendant’s reason for the action is false.” See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 509- 11, 113 S.Ct. 2742, 2748-49, 125 L.Ed.2d 407 (1993). “A reason cannot be proved to be ‘a pretext for discrimination’ unless it is shown both that the reason was false, and that discrimination was the real reason.” Id. at 515, 113 S.Ct. 2742. A plaintiff may show pretext in one of the three following ways: (1) the employer’s proffered reason had no basis in fact; (2) the proffered reason did not actually motivate the termination; or (3) the proffered reason was insufficient to explain the defendant’s actions. See Johnson, 215 F.3d at 573; Manzer, 29 F.3d at 1084.”).
HOW RACIAL DISCRIMINATION RELATES TO YOU PERSONALLY
What to do if you believe you have been discriminated against based upon race?
If you believe that you have been the victim of racial discrimination you should contact Mark Carey at 203-255-4150 or email@example.com. You should file a claim yourself with either the local fair employment agency in your jurisdiction and/or the EEOC. There are strict timelines for filing such a claim so you should file your claim as soon as possible. You should also be aware of any adverse action that your employer takes against you once you have filed such a claim. If you believe that such action was in retaliation for your having filed a claim you should submit another claim for retaliation. For more information on this subject consult our retaliation chapter herein.
What to do if you believe you have been accused of discriminating against someone based upon race.
As discussed in several other chapters dealing with discrimination under Title VII, although Title VII does not provide for individual liability some state fair employment laws do allow claims against managers in their individual capacity. “The Court finds that these allegations sufficiently set forth a cause of action for individual liability under the NYHRL.” Gad-Tadros v. Bessemer Venture Partners, 326 F.Supp.2d 417, 426 (E.D.N.Y.,2004). Usually when the claim has been filed against you human resources and/or your company’s legal department will handle it. However, you should know that the in-house counsel’s client is the company and accordingly to preserve your rights you may want to seek the assistance of outside counsel.
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