[ Discrimination on the basis of Race/National Origin ]

Employers discriminating on the basis of race and/or national origin is not only unlawful under Title VII but also under other Congressional enactments and by Constitutional law as well. The main difference between claims based on different laws are the availability of damages. Title VII is one method of analysis used, however damages may be limited and there are certain administrative requirements that plaintiffs must comply with before commencing their litigation.

One of those enactments is Section 1981 (42 USC section 1981). Section 1981 applies only to race discrimination and to employment contracts that Title VII may not address including independent contractors and employers with fewer than 15 employees. There may be more damages and remedial options against individuals. Unlike Title VII there are no administrative requirements that must be fulfilled before a suit is commenced. Also, in order to get punitive damages, the plaintiff will have to show that the employer was being acting recklessly or with malice. The cases are analyzed under the same Title VII framework, but you cannot file for damages under both laws.

Proving direct and intentional discriminatory intent in both types of cases can be very difficult without direct evidence and can require inferences that require various levels of evidence being produced by either side at various points of litigation. Procedurally, if the plaintiff makes their preliminary case (the prima facie case) the burden of production of evidence now shifts to the employer to come up with a legitimate non-discriminatory reason that the plaintiff will try to show was a pretext for impermissible discrimination. Ultimately while burdens of evidence production may switch, the plaintiff retains the ultimate burden of persuasion in proving their case. Types of indirect evidence that may bolster a case are (1) comparative evidence of treatment of other employees not in the protected group, (2) the treatment of the plaintiff during the course of the entire employment term, and (3) general patterns of minority employment at the company.

In these situations, animus/intent may be admitted or inferred from circumstantial indirect evidence. In sorting out these cases, courts may use the Mixed-Motive Analysis - this is when a person's protected status played a part in an negative employment decision when combined with other factors. This standard is less stringent than direct proof and is therefore harder to prove. Being as such some courts may want more indirect evidence, while others may require direct evidence that is hard to obtain. In all of these situations the burden of proof shifts to the defendant who, in order to avoid a finding of liability, must establish by a preponderance of the evidence that it would have made the same decision even in the absence of the impermissible motive.

 

There are four elements that are usually weighed in deciding these cases

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