Below are general terms that apply to claims that proceed to civil litigation. Keep in mind that litigation only typically results after a series of required administrative proceedings that yields a settlement, the state or federal commission taking up your case on your behalf, a dismissal or right to sue letter being issued. For administrative terms click here.

Discrimination - this not defined within Title VII as such, but involves denying of a privilege or benefit on the basis of a protected trait and treating people differently when there is no reasonable distinction between those favored and those not favored. Discriminatory practice includes harassment on the basis of race, color, religion, sex, national origin, disability or age. Also, retaliation against individuals filing charges of discrimination, participating in an investigation or opposing discriminatory practices is illegal. Unfavorable employment decisions based on the protected traits and/or denying employment opportunities to a person with, or a person married to a person with these protected traits are illegal.

Affirmative Defense - a defendant's assertion raising facts and arguments that, if true, will defeat the plaintiffs claims, even if all of their allegations are true. Usually provided for by common law tradition or by the governing statute. (see legitimate non-discriminatory reason)

Animus - is ill will or animosity. Also, a prejudicial disposition towards a discernible usually legally protected group of persons or individuals.

Burden of Persuasion - a party's duty to convince the fact-finder to view the facts in favor of that part. The civil standard is usually "by a preponderance of evidence," while criminally it's the familiar "beyond a reasonable doubt."

Burden of Proof - the Plaintiff's duty to prove a disputed assertion or charge. This includes both the burden of persuasion and the burden of production.

Burden of Production - a party's duty to introduce enough evidence on an issue to have the issue decided by the fact-finder. This is also called the burden of going forward with the evidence, the burden of producing evidence. Failing this burden may lead the case being dismissed entirely in some circumstances.

Constructive Discharge - is when work conditions get so bad an employee has no choice but to quit - effectively being fired by the conditions at work. This is true when working conditions so intolerable that the employee is forced to resign when they don't want to - this will count as a negative employment action taken by the employer even though you technically quit.

Courts will look to see if there is a sufficient causal connection between employer's actions and the resignation. However, depending on where you live, the question of employer intent on making the workplace unpleasant is pivotal - proving this intent may be very difficult. Usually, the trier of fact will have to be satisfied that working conditions were so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign.

In California to prove constructive discharge courts will see if the employer either intentionally created or knowingly permitted working conditions that were so intolerable that another reasonable employer would realize that any reasonable person like the discharged employee would be compelled to resign. Meanwhile the discharged employee must mitigate their potential damages by getting another job in place of their former one before and during the litigation process.

Damages - money claimed by, or ordered to be paid to, a person as compensation for a loss or injury. Compensatory Damages: reimbursement damages awarded that are sufficient to cover and repay the loss suffered. Punitive Damages: damages awarded in addition to actual (compensatory) damages when the defendant acted with recklessness, malice, or deceit. These damages are meant to deter future blameworthy conduct.

EEOC - Equal Employment Opportunity Commission - a federal agency charged with enforcing Title VII. The EEOC will take up claims on behalf of individuals (or groups of individuals) who feel as if they have been discriminated against. In any given case, reporting your case to the EEOC or a similar state level agency is required first step. Many people will try to report their case to their Human Resources department first (oftentimes to no avail), or some people will feel too intimidated to do that. In either case the next step is to call the EEOC. The EEOC will conduct a preliminary investigation, and will either take your case up for you, issue a letter that allows you to file a private claim in court. The EEOC is also responsible for enforcing other laws including the parts of the American with Disabilities Act, the Age Discrimination in Employment Act, the Civil Rights Act of 1991 and the Equal Pay Act.

Employment Discrimination - under Title VII, the ADA, and the ADEA it is illegal to discriminate in hiring/firing, pay, assignment, classification, transfer, promotion, layoffs, recalls, job advertisement, recruitment, testing, use of company facilities, benefits, training and apprenticeship programs, retirement plans, disability leave and other terms and conditions of employment.

Evidence - something (testimony, documents, tangible objects) that tends to prove or disprove the existence of an alleged fact. Direct Evidence: evidence that is based on personal knowledge, observation and that, if true, proves a fact without inference or presumption. As opposed to Indirect (Circumstantial) Evidence: evidence not given by testimony that is based on an inference and not on personal observation of observation.

FEHA - the California Fair Employment and Housing Act. Is an example of a state law that is more comprehensive than federal law in terms of protection against discrimination and even covers sexual orientation as a protected class.

Harassment - words, conduct, or action (usually repeated or persistent) that, being directed at a specific person, annoys, alarms or causes substantial emotional distress that serves no legitimate purpose.

Hostile Work Environment - a work environment where an employee is subject to unwelcome verbal or physical behavior that is either severe or persuasive. (Taken from the Sexual Harassment context).

Intent - the state of mind accompanying an act, especially a wrong act. This is not an inducement to do the action but rather the mental resolution or determination to do it.

Joint Consent Decree -judicial decision that resolves a lawsuit that all parties agree to. Usually in the employment discrimination context the Defendant usually does not admit to any wrong-doing at all and typically agrees to pay a lump sum to the Plaintiffs and undertake measures to remedy the situation that led to the charge in the first place.

Injunction - an order issued by a court ordering someone to do something or prohibiting some act after a court hearing. So-called "mandatory" injunctions which require acts to be performed, such an act is the use of judicial (court) authority to handle a problem and is not a judgment for money (for that see damages).

Legitimate Non-Discriminatory Reason - a reason the complies with the law for a negative employment action that will excuse an employers seemingly unlawful action. These include: business necessity, a bona fide occupational qualification, a valid affirmative action plan, undue hardship after reasonable efforts.

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 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.

Pretext - a false or weak reason or motive advanced to hide the actual or strong reason or motive behind an action.

Prima Facie Case - the establishment of a legal required rebuttable presumption. Done by a party producing enough evidence to allow the trier of fact enough evidence to infer the fact and rule in the party's favor, thus allowing the case to continue.

Reasonableness - a standard that evaluates a set of actions to see if those actions were fair, proper, or moderate under the circumstances. This is one of the central standards that courts and statutes use in interpreting actions taken by an employer (or a person generally) in civil litigation. The subjective nature of this standard can lead to a great deal of unpredictability as to how suits will be decided.

Rebut - to refute, oppose, counteract by evidence, argument or contrary proof.

Rebuttal - in-court contradiction of adverse party's evidence.

Section 1981 (42 USC 1981) applies only to race discrimination (not national origin) 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. These race cases are analyzed under the same Title VII framework, but you cannot file for damages under both laws.

Stereotype - sure everyone has a system of shorthands to categorize people but when their pre-conceptions of people spill over into hateful or irrational prejudices this is not allowed in the workplace and is an illegal basis for negative employment action

Theories of Liability - are recognized basis of activity that is unlawful or wrong. The basis are usually rooted in the common law (previous case law) or can be defined by both statute and cases.

Title VII - is part of the federal Civil Rights Act of 1964, (codified at 42 USC sec. 2000 onwards) which along with other sources of state and federal law, prohibits employment discrimination based on race, color, religion, sex or national origin on the part of employers who employ more than 15 people. Many states have their own civil rights laws that provide a state-level basis for protection.

Administrative terms.

Administrative Closure - Charge closed for administrative reasons, which include: failure to locate charging party, charging party failed to respond to EEOC communications, charging party refused to accept full relief, closed due to the outcome of related litigation which establishes a precedent that makes further processing of the charge futile, charging party requests withdrawal of a charge without receiving benefits or having resolved the issue, no statutory jurisdiction.

Merit Resolutions - Charges with outcomes favorable to charging parties and/or charges with meritorious allegations. These include negotiated settlements, withdrawals with benefits, successful conciliations, and unsuccessful conciliations.

No Reasonable Cause - EEOC's determination of no reasonable cause to believe that discrimination occurred based upon evidence obtained in investigation. The charging party may exercise the right to bring private court action.

Reasonable Cause - EEOC's determination of reasonable cause to believe that discrimination occurred based upon evidence obtained in investigation. Reasonable cause determinations are generally followed by efforts to conciliate the discriminatory issues which gave rise to the initial charge. NOTE: Some reasonable cause findings are resolved through negotiated settlements, withdrawals with benefits, and other types of resolutions, which are not characterized as either successful or unsuccessful conciliations.

Settlements (Negotiated) - Charges settled with benefits to the charging party as warranted by evidence of record. In such cases, EEOC and/or a Fair Employment Practices Agency is a party to the settlement agreement between the charging party and the respondent (an employer, union, or other entity covered by EEOC-enforced statutes).

Successful Conciliation - Charge with reasonable cause determination closed after successful conciliation. Successful conciliations result in substantial relief to the charging party and all others adversely affected by the discrimination.

Unsuccessful Conciliation - Charge with reasonable cause determination closed after efforts to conciliate the charge are unsuccessful. Pursuant to Commission policy, the field office will close the charge and review it for litigation consideration. NOTE: Because "reasonable cause" has been found, this is considered a merit resolution.

Withdrawal with Benefits - Charge is withdrawn by charging party upon receipt of desired benefits. The withdrawal may take place after a settlement or after the respondent grants the appropriate benefit to the charging party.

(Source for Administrative Terms: EEOC)