Establishing a Prima Facie Case

Here it is. October, the Awareness Month. Breast Cancer, Non-visible Disabilities, Domestic Violence all earn some recognition in this month. Although all three deserve recognition, Domestic Violence is the one I support. As time passes, I wince at the fact that those with disabilities, especially non-visible disabilities are overlooked in many of the conversations about preparedness, equality, inclusion, and accommodation. Unfortunately, the population with all manner of disabilities keeps growing. Perhaps part of that growth is caused by one of the other members of this month's trio, also known as "abuse."

It was because I was reviewing some old contentthat discusses the essentials of making a case (the guidelines) that I discovered one of the links was stale and needs to be updated. The link is contained in an article about abuse in the workplace and the necessity to establish a prima facie case in order for the case to prevail. In that article, it was noted that "establishing that an abusive condition exists in the workplace, it's necessary to make certain you have the elements. The elements of this are not identical for every situation." Hmmm. Reference.com has removed the page that describes those elements. Perhaps the reason for the removal is because the basis is different and depends on the situation to be proved.

It would be helpful to have a list of the typical instances when a workplace prima facie case needs to be established. First, however, let us define what the term "prima facie" means. And because I have several other unrelated projects running with the same deadline, I'm going to be sloppy today. No discussion of the issues. Instead, the links to more information are provided in this writing.

Reference.com Items

First, there's the definition of the term. "Prima facie" is a Latin term that means "on its face" or "at first glance." In court, a litigant makes a prima facie case by presenting evidence that discrimination occurred.

Title VII Scenarios

What's a Prima Facie Case of Discrimination Under Title VII The burden of proof is first the employee's responsibility to establish:

The elements of a prima facie discrimination case are:

• The employee is in a protected class (based on race, gender, and so on).
  
• The employee was qualified for the position. For example, an applicant who wasn't hired would have to show that he met the requirements for the job; an employee who was fired would have to show that she was performing the job adequately and meeting the employer's expectations.
  
• The employee was rejected for the position -- in other words, the applicants was not hired, or the employee was not promoted or was fired.
  
• An employee outside of the protected class was selected for the position, or the employer continued to look for candidates. For example, an employee who claims she was not promoted because she was a women could show that a man was promoted instead, or that the company continued to look for internal candidates after rejecting her.
  

The responsibility then shifts to the employer to present evidence that discrimination was not the case, that there was equity.

Under the Americans with Disabilities Act

Making a Prima Facie Case of Discrimination Under the ADA explains that under ADA, things shift. The rules are based on local court standards but the prima facie case essentials are basic.

Generally speaking, an employee must present evidence of three facts to bring a prima facie case:

• The employee had a disability, had a history of disability, or was perceived by the employer as having a disability. The ADA defines a disability as a physical or mental impairment that substantially limits one or more major life activities. For more information on what qualifies as a disability under the ADA, see What Is a Disability Under the Americans with Disabilities Act (ADA)?
  
• The employee was qualified for the position and able to perform its essential functions, with or without a reasonable accommodation. Employers are not required to hire or retain employees who can't do the job; only qualified employees are protected from discrimination under the ADA. To learn about qualifications and essential functions, see Essential Job Functions and the ADA.
  
• The circumstances suggest that the employee was subjected to a negative job action based on disability.
  

For the case to survive, the disability needs to be recognized as a legitimate one of those currently recognized as physical or mental, as well as what is considered a substantial limitation. You will want to also consider what is deemed a major life activity. Also taken into consideration is whether the employee can perform the essential functions of the job. I recently talked about amount and length of experience in determining whether a person is actually qualified. Workers should pay close attention to this distinction of the Act, whether it relates to age, disability, or gender. It will have a bearing on whether the negative action was justified. How well the candidate can establish that they meet the criteria for being qualified is their responsibility if they want to be hired.

Hostile Work Environment - Race

When it comes to hostile work environment, based on race, there are tricky questions that need to be satisfactorily answered in order to bring a cause of action. The Gregory Hall law firm tells us about the five elements of the prima facie case:

• the plaintiff was a member of a protected class;
  
• the plaintiff was subjected to unwelcome harassment;
  
• the harassment was race-based;
  
• the harassment unreasonably interfered with the plaintiff’s work performance by creating an environment that was intimidating, hostile, or offensive; and
  
• the employer was liable for the harassing conduct.
  

The reason this gets tricky is because, as pointed out by Mr. Hall, there are phrases that need to be carefully examined in order to establish the case. The phrases and terms are things such as "substantially interfered" with performing the work. There is also being able to establish the "totality of the circumstances" as well as whether the employer knew or should have known and failed to take prompt remedial action. (Case law relating to these concepts is provided in his article.)

It is worth noting that the U.S. Ninth Circuit Court of Appeals issued a Comment that considered race and sexual harassment and said, ". . . the Committee does not discern any conceptual difference between harassment because of sex and harassment because of race or any other protected status. Accordingly, the following instructions are applicable to harassment based on race, color, sex, religion and national origin."

As to remedies for racial discrimination, it's worth spending some time considering what LegalMatch has to say. As they discuss the last element to be proved, it is significant that the employer rejected one candidate but continued seeking a person to hire who has the same qualifications as the one who was rejected. LegalMatch lists the elements as:

In order to establish a prima facie case of employment discrimination, courts will generally require proof that:

The plaintiff was a member of a “protected group” The plaintiff was qualified in all respects for the job they sought The plaintiff was rejected in spite of being fully qualified After the rejection, the employer continued seeking for applicants with the plaintiff’s qualifications

Emphasis supplied

Although these items discuss workplace harassment and discrimination, it's prudent to consider how these standards apply to places that are nonprofit, spiritual, and fraternal organizations. In other words, are those types of organizations free to use practices that are ordinarily violations of civil rights?

Sexual Harassment

And then there's the matter of sexual harassment. Wiggins Law tells us there are four elements involved in a sexual harassment case. The situation is because of the plaintiff’s gender, must be severe or pervasive, and must be unwelcome are the first elements of a sexual harassment claim. Next, the behavior is severe or pervasive. According to Wiggins' analysis, "Courts apply the phrase 'hostile environment' to lawsuits assessing behavior that has constructively changed the complainant’s working conditions." Please be aware that there is a reason why courts placed the severe or pervasive requirement on these cases. To leave the matter open to any and all conduct would be to stifle the occasional teasing and camaraderie that's intended to build an atmosphere of congeniality and support. So, "the “severe or pervasive” requirement is meant to 'filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing,' limiting actionable claims to encompass only 'extreme' conduct."

The third element of a sexual harassment case relates to the fact that the conduct is unwelcome. However, the fourth element has been modified as time has passed. No longer is the requirement of showing quid pro quo a viable element for establishing employer liability. The "who" of the conduct and vicarious liability are what do come into question. In this regard, Wiggins tells us, "liability depends upon who committed the harassment, whether the harassment resulted in a tangible employment action, and the employer’s response to the harassment."

Race as Well as Sex

A 1984 Harvard Business Review article takes a close look at two different instances of discrimination and hostile workplace. The courts and EEOC draw out distinctions that are worth noting with regard to humor compared with harassment.

There was no racial harassment in the oil rig case because race was not the underlying factor. The abuse was meted out without regard to an individual's race. Everyone was the target of the abuse but management did nothing to reverse or stop the practices. Most instructive is their conclusions about where the fun stops. Hazing is discussed.

How does harassment differ from hazing? Hazing is a ritual engaged in to determine whether new employees are trustworthy and able to stand up under stress and uncertainty. Employees who withstand the debasing experience receive “membership” in the work group as their reward. Hazing is usually carried out on an “equal opportunity” basis with sparing of few, if any, employees.

And then it is distinguished from harassment, which the author tells us, ". . . is more invidious. It involves singling out a person with the intention of discouraging the person’s company or continued employment, or of creating an unpleasant or hostile environment."

What We've Discovered

We should come away from this examination of establishing a prima facie case of discrimination is that there are different elements to each type of violation (which was stated at the beginning of this adventure). More importantly, management should not idly stand by and allow the violations to continue unabated - for whatever reason. Failure to do so will result in the company being liable and subject to fines.

But the critical step is for the plaintiff to adequately establish the required elements of their case. The other critical step is for the potential plaintiff to not allow the violations to continue. They should be addressed in an affirmative manner. There are many options for handling this before resorting to litigation.

Resources:

• Title VII and Sexual Harassment Claims
  
• Policy Guidance on Current Issues of Sexual Harassment
  
• Racial Remarks in the Workplace: Humor or Harassment?
  
• Sex & Gender Discrimination
  
• Shown the Door, Older Workers Find Bias Hard to Prove
  

Sponsored Links:

• Title VII - Prima Facie Cases (Employment Law Series)
  
• Employer Retaliation (Employment Law Series)
  

Facing the Facts

It's been more than 20 years since the revelatory incident happened. It drastically changed my opinion about me and the way I perceive things.

As I approached a store entrance, an attractive young man who appeared to be in his early to mid 20s pulled into a handicapped parking space. He was driving a new sports model car. By virtue of the fact that he killed the engine and readied himself to exit the vehicle, it was apparent he planned to remain in the spot and was not using it to gain access to another space.

I stopped as I passed him to share some information. "Excuse me. This is a handicapped parking space. You may want to park somewhere else," I advised.

"But I am handicapped," he replied.

It was an indelible experience. In that instant, it was obvious to both of us that I had a major prejudice that needed to be overcome; it was an attitude about those with handicaps that needed to be altered in a major way.

Other Views

Since then, I've encountered others who have not yet had that type of revelatory life experience and speak of the handicapped or disabled in condescending terms and judgmentally dismiss them as not capable of filling some type of vacancy because of their "handicap."

It was interesting to listen to the executive recruiter who met a manager who is a Thalydamide survivor. "He only has one hand," the recruiter exclaimed, "But he can do all the things I can with his one arm. He can drive a car. He can type faster than I do ..." and he went on to describe the "adaptations" the manager has developed in order to do all of the tasks that others do with two limbs.

Considering this recruiter's amazement with the novelty that one with a "disability" can actually be hired for a management position and successfully function on the same level with their peers, the next question was who had recruited and hired this manager. After all, the manager was working for the recruiter's client. This recruiter, it appeared, would have passed on the manager; he would have considered the man as not qualified. However, the manager has all of the qualities one could want in an essential member of your corporate executive team.

The Right Question

Having assistive devices is not a red-flag situation that your candidate is not qualified for the position. It's only an observable signal that the person has a different way of doing the things that many other candidates manage. The interviewing question that should be put to all candidates is not, "Does your handicap require any special accommodations?" Nor should the first thought be the additional costs of having the person on your team because of major modifications to the workplace in order to have them there. Instead, the appropriate question for all candidates who are under serious consideration is, "Do you need any accommodations in order to fulfill the requirements of the position?"

What Isn't Seen

What's interesting is there are many invisible "disabilities" that are never addressed nor accommodated. The only reason a person with a prosthetic eye, for example, is never "accommodated" is because it isn't immediately obvious. If it never comes up in the interview and if the candidate has reached a means of dealing with doing the same work as their peers with a minor, unobtrusive adjustment, no one is the wiser unless the medical records search discloses the matter.

Other conditions that are not obvious yet may be legally termed a disability are emphysema, pregnancy, anemia or heart murmur. They are "invisible" conditions (in the case of pregnancy, short-term invisible) but are not carte blanche total disqualifications of an otherwise qualified candidate. These conditions may require some accommodation provided by the company or, in greater likelihood, an adjustment of some sort by the person with the condition so that they are able to do the same work in the same amount of time (or less time with better results) as their peers.

Changed Perceptions

That was more than 20 years ago. My perception of what having a disability means and how people who are classified as such appear has drastically changed. My idea of entitlement for a person with a disability has also drastically changed.

The pivotal lesson here is to take stock of what you believe a person with a disability means and to what they are entitled. If you believe they are just as entitled to a marketable wage, advancement, and access, if you believe they are just as capable of producing cost-saving and quantifiable positive results for your company, you deserve the opportunity to have them on your team or present them to your client.

Yvonne LaRose was recently selected to serve on the Los Angeles Metro Accessibility Advisory Committee. She was a Disabilities Accommodation Provider in the Bay Area of California from 1993 to 1997. From 1993 to 1996, she was a news reader for Broadcast Services for the Blind (BSB). The service is a private band radio station based in the Rose Resnick Lighthouse for the Blind that reaches 13,000 listeners in 13 counties). From the BSB studio, she produced and hosted her very popular bi-weekly radio newscast, "Legally Speaking" that aired from 1994 to 1996.