Employment discrimination lawsuits are complex suits due to the intense focus on the facts and law involved. Many employment discrimination cases never make it trial because they fail to survive summary judgement. (Or because they settle at some point before trial.) In the journey of litigating an employment discrimination claim many reach summary judgment. Summary judgment is an analysis of the legal issues in a claim before a factfinder adjudicates the facts.
In an employment discrimination suit alleging disparate treatment (different treatment on the basis of a protected trait), the plaintiff’s claim of disparate treatment is typically reviewed on summary judgment under the McDonnell Douglas burden shifting framework. This framework is extremely important in employment discrimination and wrongful termination lawsuits.
If you believe you have an employment discrimination or wrongful termination claim in Texas then you should talk to an employment attorney ASAP.
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The McDonnell Douglas framework in employment discrimination litigation
The McDonnell Douglas framework shifts the burdens between the parties unlike most other claims. In typical litigation a party has the burden of production to produce evidence supporting its claim or affirmative defense. However, in employment discrimination the plaintiff may not know the employer’s nondiscriminatory rationale.
Rather than force the plaintiff to conduct expensive discovery to fish out the employer’s reasoning and the burden shifting framework shifts the burden to the employer to produce a nondiscriminatory reason. Then it shifts the burden back to the employee-plaintiff to disprove the alleged nondiscriminatory reason for the employer’s conduct. So the McDonnell Douglas framework is:
1. The plaintiff must plead and prove a prima facie case of discrimination by a preponderance of the evidence (a prima facie case will be described below);
2. The burden of production shifts to the employer to articulate a legitimate, nondiscriminatory motive for its conduct;
3. The burden of production shifts back to the employee to prove the employer’s provided motive is pretext for the discriminatory conduct.
The employee’s first task is to prove the prima facie case, which will differ depending upon the plaintiff’s allegations. Generally the prima facie case will begin with proving the plaintiff belongs to a protected group. The most difficult part of the McDonnell Douglas framework is proving the employer’s offered nondiscriminatory motive was pretextual. That means it is a false excuse to cover up the true discriminatory motive.
The McDonnell Douglas framework works in cases where the plaintiff’s allegations rely on circumstantial evidence. Where there are mixed motives or direct evidence of discrimination the Price Waterhouse framework is typically applied. Employment attorneys in Fort Worth and Dallas can discuss these frameworks with you in your employment discrimination or wrongful termination suit.
What is a prima facie case in an employment discrimination lawsuit?
Employment discrimination litigation is complex and in many ways unique. One of the key ways employment discrimination lawsuits are unique is how the burdens of producing evidence are allocated between employee and employer.
In most lawsuits the plaintiff has the exclusive burden to produce evidence of his or her claims and the defendant may chose to produce no evidence in its defense and merely rebut the plaintiff’s case. In employment discrimination suits this is not the case.
Instead there is a burden shift in which the plaintiff need only plead and prove a prima facie case to shift the burden to the employer to present a non-discriminatory reason for its conduct and then the burden returns to the plaintiff to disprove the employer’s non-discriminatory motive.
If the plaintiff has direct evidence of the discriminatory motive then the plaintiff can skip the burden shifting and leave a more traditional litigation framework intact. (This is the Price Waterhouse framework.) Typically a plaintiff will not have direct evidence of discriminatory motive and will instead need to begin with a prima facie case.
A prima facie case of employment discrimination is the evidence and pleadings that, if taking on face with no rebuttal from the employer, would conclusively prove employment discrimination occurred. The specific elements of the employee’s prima facie case depends upon the type of discriminatory act alleged.
For discriminatory acts that involve an adverse employment actions on the basis of a protected status or group the prima facie case is more similar while a prima facie case for failure to accommodate a disability or religious belief under Title VII (religion), the Americans with Disabilities Act (disability), the Rehabilitation Act (disability), or the Texas Labor Code (all) is significantly different. Similarly, the prima facie case
A prima facie case for an adverse action claim (where the employer took an action against the employee like failing to hire, demoting, or terminating) generally requires this type of frame work:
- The plaintiff is a member of a protected group;
- The plaintiff was qualified to perform the job at issue;
- The employer took an adverse employment action against plaintiff in spite of the qualifications;
- The employer’s action raises a reasonable inference of unlawful discrimination.
The last element is described in vague terms because it’s where the prima facie case must be tailored to the specifics of the adverse action. There is not one single act that raises this reasonable inference in all cases. Instead, we must look at the type of adverse employment action to determine what types of actions by the employer raises this inference.
In a termination case we often look for a replacement outside of the protected group but that is not required for a termination case.
Instead we might look at whether the employer sought applications for replacements with the plaintiff’s qualifications. Often prior cases steer us towards the particulars of the prima facie case for a given adverse action.
Employers will dispute elements of the prima facie case and often challenge the second and fourth elements. It is rare to see an employer argue somebody is not part of a protected group or that an adverse employment action did not occur (but it does happen).
Employers will challenge whether the plaintiff was qualified for the job, particularly when hiring, firing, failing to promote, or demotions are involved.
Similarly employers often challenge whether a reasonable inference of unlawful discrimination has been plead and proved by the plaintiff because disproving an inference of discrimination means the employer never has to present an explanation why the adverse action was not motivated by discrimination.
The prima facie case is almost always assessed by the court at summary judgment so the case is narrowed for the later trial. An employer’s success at the prima facie stage can save considerable time and money avoiding trial.
What kinds of employment discrimination are illegal in Texas?
When people think about illegal employment discrimination, they usually think about race discrimination and sex discrimination. While those are the two most prominent forms of employment discrimination, they are not the only kinds of unlawful discrimination. Discrimination can be loosely classified in three categories: characteristic discrimination and legal right discrimination.
Characteristic discrimination in Texas
Characteristic discrimination involves discrimination for some characteristic of the employee and includes as protected statuses several fundamental characteristics of people. Discrimination is prohibited against certain immutable traits. As a society we want our workplaces to give equal job opportunities to people based upon performance and skill. For that reason, certain immutable traits are severely limited as the basis for employment decisions:
- Color (where discrimination can occur within the same race but by skin color, such as favoring light skinned African Americans over dark skinned African Americans)
- National Origin (but not citizenship/alienage)
- Age (when the employee is over forty years of age)
- Disability (as long as the employee/applicant can perform the essential functions of the job with or without a reasonable accommodation)
- Genetic conditions (such as Huntington’s Disease)
In addition to protecting employees and applicants from discrimination on the basis of these traits, the same laws prohibit retaliation against employees and applicants for opposing discrimination against themselves or others in the workplace for one of these protected statuses.
That opposition can either be by informally opposing it in the workplace, such as filing a complaint with HR, or participating in formal government investigations of employment discrimination, such as filing an administrative complaint of discrimination with the EEOC or Texas Workforce Commission or assisting an investigation by the EEOC of employment discrimination.
Legal rights discrimination in Texas
Legal right discrimination involves several laws that prevent discrimination on the basis of a legal right an employee exercises. A few laws protect the employee’s or applicant’s rights based on something other than the traits listed above. These rights come up in a couple common cases.
Under ERISA an employer may not discharge an employee to prevent them from vesting in some employee benefit, so you employer cannot fire you to prevent you from vesting in pension or 401k plan benefits.
Additionally, under USERRA an employer cannot discriminate against an employee on the basis of military service and must make certain accommodations for employees who serve in the military, including the National Guard.
Employees and applicants are also protected from discrimination for asserting other legal rights where the discriminatory acts come in the form of retaliation for asserting those rights.
Under ERISA an employee cannot suffer retaliation for appealing a decision by the plan administrator denying benefits.
Under USERRA an employer cannot retaliate against an employee who is a service member and returns to work after service. OSHA prohibits employers from retaliating against employees who file complains of workplace hazards or participate in OSHA investigations. Worker’s compensation prevents employers from retaliating against employees for filing worker’s compensation claims.
The National Labor Relations Act prohibits employers from discriminating against employees who engage in protected concerted activity – joining a union or working with other employees to improve terms of employment. Government employees have certain protections from retaliation by the employing agency for exercising First Amendment rights.
Employees in Texas enjoy protection from retaliation from refusing to engage in an illegal act on behalf of the employer. Sarbanes-Oxley protects employees from certain financial whistleblowing and some government employees have additional whistleblowing protections.
This is not an exhaustive list of protections from retaliatory discrimination; but as you can see there are many protections for your legal rights.