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)
  

It's the Little Things You Say

Some employers wonder why they just achieve full diversity in their workplace and then it suddenly collapses when an exodus of five to ten people occurs. The pay is good. The benefits are excellent. The working hours aren't excessive. Work-life balance issues are addressed. There's everything going for the environment. So why are these five to ten people leaving after a year or two? The scenario is repeated year after year, department after department.

Maybe that's the problem. The things that are being held constant but not examined. Undoubtedly, the interviewers are people who have been in the organization for a good amount of time. They've become acculturated. They speak and reflect the culture. That's one of the reasons they were selected to be interviewers. They represent the corporate culture in addition to knowing all of the details about the position and the best fit for it. As interviewers, they don't grill the candidates; they have conversations. They tell anecdotes that are actually open invitations to share information and personality. They relax and begin to spontaneously react to things said by the candidate and then reveal a little more of who they are and why they've been with the company for as long as they have.

There were faux pas during the interviews that the candidate chose not to address or acknowledge. But as time passed, the new employee realized these were not aberrant. These instances are part of the corporate culture and they keep getting repeated in various ways.

Coupled with watching the practices is the listening. The listening started from the moment the phone call reached them for the phone interview and the invitation to come in for a personal interview. The listening was happening as they sat in the reception area and as they made their way through the halls from one office to the next. The listening was happening as they walked into the front doors into the elevator from the commute to the office.

It was the little comments that were made in response to something that was willingly volunteered in order to show how motivated the candidate was. It was an observation that over-reached the situation but simultaneously came crashing down on a particular class of individuals. It was an observation that was basically pandering to some part of the candidate's identity and the observation was completely wrong. They were asked where they expect to see themselves in five years. The honest response was met with a muttered, "Yeah, right." During their tenure with the company, some executive asked them to reserve some time because they wanted to meet with the employee. The employee had been doing the right type of networking and politicking to move into that department and commented to their supervisor that the meeting would hold a lot of opportunity for them. The supervisor's comment was something on the order of, "I doubt it."

One of the things these corporate emigrants realize is that there is no place for them in the higher rungs of the company. They've been there long enough to have watched the various types of personnel who are pushed along and who has been diverted or discouraged from following a particular path. The pattern repeats itself without benefit of gossip nor sniping remarks.

Perhaps there was good follow-up and the candidate was contacted by phone or letter or email. The message was essentially that although the candidate's qualifications and background are exceptional, they simply were not the right fit for the position. Good luck in [your] future endeavors. Blah, blah, blah, blah, blah. Or perhaps there was no follow-up. A person who looks just like everyone else in the company was hired and life just went on. If either of these situations occurred, the candidate who was passed over had little to say aloud. In fact, they may have even forgotten they interviewed at your company. Why? Because of how under-whelmed they were. They were relieved to be out of the way of the sniper shots.

In the alternative, they were hired for some reason. Maybe it was because they are of the ethnicity or gender that was required at that time. But they've reached that exodus threshold and just tendered their resignation. That's when a disappointed at the resignation notice is made and thoughts about losing a worker of that quality are mulled. Where to find more of that type of worker to do exactly the same thing but more of it. After all, that's why they were hired. More importantly, how do you keep them?

"Sam[antha], you're such a great [insert job title]. You're conscientious and hard working. You get things done and don't need a lot of supervision. You're not like the others of your kind. You're an exception. We'd like to keep your kind with us in the family. Is there anything we could do to convince you to stay, to keep doing your exceptional work for us?"

It's about this time the key to the door has been turned and locked. Sam[antha] doesn't need to say anything but will probably respond with, "I don't think so. But thanks."

EEOC News - Work-Life Issues; Minimum Wage

A couple of hours ago, the folks at Starbucks wondered why I stood on top of a table and cheered. (Well, I wasn't quite that demonstrative!) Yes, I had my very own personal celebration. It's because I've been a feminist since the 1960s. I've been an affirmative activist since the '60s. And I'm on record as being in favor of an increase in the minimum wage so that it returns to being a livable wage.

And a few hours ago I read the news from today's Employer Advisor E-Alert. That service announced that EEOC has made a ruling in regard to discrimination that touches on work/life balance when it comes to FMLA, caregiving responsibilities on either side of the age gap, acknowledgement (I said acknowledgement) of the fact that women are indeed discriminated against when it comes to caregiving responsibilities and career advancement opportunities, protection of women from being passed over for wage increases and promotion, recognition of discriminatory issues related to men and women of color.

And (oh yes) the Federal minimum wage will increase to $7.25 over the next 26 months. Yes, that is definitely a long time and the cost of living will have skyrocketed again so that the net increase will be a decrease. But at least there is some type of increase instead of stagnation.

That's a mouthful! That's a whale of a lot of progress. That's so much that I won't even attempt to summarize the news. I'll simply allow the news blurb to speak for itself: Workplace Bias: EEOC Spotlights Work/Family Balance in New Guidance.

Employer Advisor will have a full report on these matters in an upcoming issue of the California Employer Advisor. I'll be more than glad to keep you apprised. I might even dance on top of the tables at Starbucks next time!

EDITOR'S NOTE, August 3, 2007:
The Managing Editor at ERI contacted me today to advise that the treatment of the news blurb was use of copyrighted material. Today's edit will allow you to read the article via the link to the public content on ERI's website.