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)
  

Raising Cultural Pride

With February being Black History Month, it begs the question to call attention to the successes Blacks have made in various professions and ways they have proved themselves notable. This year a little more thought went into how to bring attention to the career inroads made by pioneering Blacks.

For a person involved in diversity issues, it's prudent to do comparisons and take note of how each ethnic group draws attention to its positive traits. For example, some ethnicities have successfully gained empathy for their situations and grown from a position of underlings. One group are Jews especially because of the atrocities their ancestors suffered in the Holocaust. Mexicans distinguish themselves through their developments various forms of art. The Chinese and Japanese (Buddhists) gain distinction in two ways: their reputation for having a quiet disposition and their skills in mastery of martial arts, one feeding on the other.

However, it doesn't seem to make a difference into what age we've advanced because Blacks still suffer from the negative stereotypes developed in the 18th and 19th Centuries. They still need to make huge efforts to overcome being judged by the color of their skin. (Mind you, Arabs and Muslims are now suffering similar discriminations but the bases are tied to fear of having a terrorist in the house.)

Compounding the state of affairs for Blacks was the rise of Jim Crow laws and practices in the Reconstruction South, cultural practices of the Antebellum South, and an attitude toward those with darker skins tones that grew out of quite surprising roots. As we learned from Ancestry.com's "Who Do You Think You Are?" series, coloreds and Negroes were not considered to be people; they were not even thought of as humans.

Research shows time and time again that people of this race were routinely treated as children would be. Someone else, usually the slave owner, would make decisions for them or become their mentor in some business dealings or endeavors. Many had the opinion that the people were poorly educated, if at all (a throwback to the practice of not allowing slaves to be educated nor learn to read) and therefore had poor comprehension skills. It didn't matter that there were Negroes who had attended some of the most distinguished Ivy League universities and graduated with honors in their disciplines. Their names and accomplishments faded into the background until some stalwart seekers researched the matters.

Time moved forward but the equitable treatment of Blacks did not. Enter the Civil Rights Era when Martin Luther King, Jr., basing his steps toward full integration for Negroes and others on the principles of non-aggression (adopted from Ghandi's teachings), the "proper," conservative coloreds made herculean efforts to not be seen as violent savages in order to win their point. On the other hand were the radical Blacks, such as the Black Panthers and members of the early stages of American Islam, who fomented hate for hate and wore Afro hairdos, in part a statement of defiance and in part a statement of self acceptance and pride.

Throughtout the years there have been stories of the persecutions suffered by slaves and the race. In some cases, these stories paralleled those of the Jews during many of their histories. But Blacks appeared to throw these atrocities into the faces of their audiences without the benefit of lessons about their strengths and accomplishments.

As I said at the beginning of this article, this state of looking at other races and ethnicities and how they've fashioned their cultural accomplishments of one type and another into acceptance and celebration, it made me want to look at how similar stories could be told about the Black (Mother) race. I remembered the research that I did last year in order to bring snippets of Black history to a retirement community throughout the month of February, Black History Month, in order to fulfill the request to do so.

That research brought out some little-known information about American Negroes. Initially it was difficult to understand why some of the history and accomplishments have slipped into oblivion. However, celebrating these accomplishments and showing that they were the means to creating a platform for success would do two things. First, it would reveal the secret to attainment and thus carve out a means of subterfuge and destruction. Second, it would develop a way of thinking that people who are part of the race have no other natural talents. Nothing could be further from the truth.

Women in the field of early science used their traditional roles as hairdressers for the mistress to gain traction in creating cosmetics, formulating chemicals for makeup, hairdressing products, better ways to put curls in or straighten them out. Others were seamstresses who not only cut the cloth and sewed, adding the small touches to give the clothing style and flair, but also the ones to work the fine details. They were the ones who listened as the mistress mused or complained or bragged and responded accordingly. Black women were in the kitchen making some of the family traditional dishes as well as creating masterpieces that sated guests at balls and grand dinners.

These were the nannies who tended the babies and children. To the extent allowed, they taught the children obedience, respect, customs and essentially became tutors who spontaneously adapted their teaching styles to the situation at hand.

The men were noted most for being barbers, preachers, and educators. Again, not only communication but listening skills were paramount to being successful. It was very important to be good at negotiation in order to work out various types of matters. And diligence in all matters showed the grist of a good worker no matter what or where the labor. In all cases, one's discretion was the key to moving forward.

We now have large numbers of legislators, judges, scientists, and other professions with more than exceptional members of the Black race (from some part of the African diaspora). I have not taken the time to try to research their climbs to success and the stumbling blocks that were part of their path. I don't doubt that those impediments only made each person the better warrior and representative of their industry's expertise. They quietly do their work and excel at it without making waves.

Is that the example, then, that we need to learn this year during Black History Month? Just be good at what you do. Do it quietly and do it with distinction for the quality that's delivered. The trouble with that version of the lesson is that having something done quietly means no one will lift the ivy wreath of success to press it onto the head of the one who deserves it; it will fade into the shadows and few will be aware of the magnitude.

In the alternative, do the work to the nth degree of integrity and expertise. Do it to the best of your ability. Then improve upon that. Make it an example of something done in a workmanlike manner. The rest will speak for itself as others repeat the story in the right places and word spreads.

NOTE: My sincerest gratitude to Geoff Boxell, fellow writer and history aficionado, for the history of Blacks in Britain.