42 U.S.C. § 2000e-2

Elements

  1. Covered entity: employer, employment agency, or labor organization

    It shall be an unlawful employment practice for an employer-

    An employer's discharge decision lies only against the employer under § 2000e-2(a), whereas a union is liable only under § 2000e-2(c) (such as causing or attempting to cause an employer to discriminate under (c)(3)).

  2. Protected trait: race, color, religion, sex (including pregnancy/abortion), or national origin

    race, color, religion, sex, or national origin

    Every individual has a race, color, religion, sex, and national origin; in circuits applying a modified McDonnell Douglas prima facie prong to majority-group ("reverse discrimination") plaintiffs, background circumstances suggesting inclination to discriminate against the majority group are required.

  3. Qualified for the position / meeting legitimate employer expectations

    to fail or refuse to hire or to discharge any individual

    Doctrinal element from McDonnell Douglas Corp. v. Green (411 U.S. 792, 802 (1973)), ruling out lack of baseline job qualification as the most common non-discriminatory reason for non-selection or discharge.

  4. Adverse employment action affecting compensation, terms, conditions, privileges, or status

    to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment

    Actionable harm to employment status or terms, conditions, or privileges of employment under § 2000e-2(a)(1)-(2).

  5. Discriminatory causation ("because of" protected trait)

    because of such individual's race, color, religion, sex, or national origin

    (formerly `variant circumstantial-nexus`) Circumstantial inference of discriminatory animus (remarks, timing, replacement outside class) Ultimate causation/intent requirement under § 2000e-2(a): the protected trait was a determinative cause of the adverse employment action.

  6. Employer's legitimate, nondiscriminatory reason (McDonnell Douglas step 2)

    because of such individual's race, color, religion, sex, or national origin

    (formerly `variant legitimate-nondiscriminatory-reason`) Articulation of a legitimate, nondiscriminatory reason through admissible evidence McDonnell Douglas step 2: once a prima facie case is established, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse action.

  7. Pretext for discrimination (McDonnell Douglas step 3)

    because of such individual's race, color, religion, sex, or national origin

    McDonnell Douglas step 3: plaintiff shows that the employer's proffered reason is false / unworthy of credence, permitting (though not compelling) the factfinder to infer intentional discrimination.

  8. Impermissible motivating factor in mixed-motive cases (§ 2000e-2(m))

    an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.

    (formerly `variant mixed-motive`) Protected trait was a motivating factor among other lawful factors, proved by direct or circumstantial evidence Added by the Civil Rights Act of 1991 (§ 107(a)): establishes an unlawful employment practice whenever a protected trait was a motivating factor, even if lawful factors also motivated the practice.

  9. Severe or pervasive hostile or abusive working environment

    compensation, terms, conditions, or privileges of employment

    Harassment so severe or pervasive as to alter the conditions of the victim's employment and create an objectively and subjectively abusive working environment.

  10. Particular employment practice causing a disparate impact on a protected group

    a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin

    Prima facie disparate impact under Griggs and § 2000e-2(k)(1)(A)(i): plaintiff identifies a specific employment practice that causes a significant disproportionate adverse impact on a protected group. RICCI_SCOPE: Ricci quotes in this block describe a hypothetical disparate-impact claim considered within the defense to intentional discrimination; they do not record adjudication of an actual subsection (k) claim against this employer.

  11. Retaliation for protected Title VII activity (42 U.S.C. § 2000e-3(a))

    to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual

    Title VII anti-retaliation claim (42 U.S.C. § 2000e-3(a)) routinely litigated alongside § 2000e-2 discrimination claims: requires (1) protected activity, (2) materially adverse action under the Burlington Northern dissuasion standard, and (3) causal connection.

  12. Failure to reasonably accommodate religious observance or practice (§§ 2000e-2(a)(1), 2000e(j))

    religion

    (formerly `variant religious-accommodation`) Bona fide religious belief conflicting with an employment requirement, notice to employer, and discharge/penalty without reasonable accommodation Religious accommodation claim combining § 2000e-2(a)(1) with the definition of "religion" in § 2000e(j); once the prima facie case is shown, the employer may show it offered a reasonable accommodation (such as voluntary shift swaps) or that accommodation would impose an undue hardship.

  13. Bona fide occupational qualification (§ 2000e-2(e)(1))

    in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise

    (formerly `variant bfoq`) Religion, sex, or national origin (never race or color) is a bona fide occupational qualification reasonably necessary to the normal operation of the business Narrow statutory exception under § 2000e-2(e)(1) for religion, sex, or national origin (omitting race and color).

  14. Bona fide seniority/merit system or professionally developed ability test (§ 2000e-2(h))

    it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin

    Statutory safe harbors under § 2000e-2(h) for bona fide seniority/merit systems and professionally developed ability tests.

  15. Mixed-motive same-decision partial affirmative defense (42 U.S.C. § 2000e-5(g)(2)(B))

    even though other factors also motivated the practice.

    (formerly `variant same-action-in-absence`) Employer proves it would have taken the same action in the absence of the impermissible motivating factor (partial defense limiting remedies) Partial affirmative defense under 42 U.S.C. § 2000e-5(g)(2)(B) to a § 2000e-2(m) mixed-motive violation: restricts remedies to declaratory/injunctive relief and attorney's fees, barring damages and reinstatement.

  16. Strong-basis-in-evidence defense for race-conscious action taken to avoid disparate-impact liability (Ricci v. DeStefano)

    because of such individual's race, color, religion, sex, or national origin

    (formerly `variant strong-basis-in-evidence`) Employer must have a strong basis in evidence that it will be subject to disparate-impact liability before taking race-conscious intentional action Ricci v. DeStefano standard reconciling § 2000e-2(a) disparate treatment and § 2000e-2(k) disparate impact: good-faith fear of disparate-impact litigation or a raw statistical disparity alone is insufficient; the employer must show a strong basis in evidence of disparate-impact liability.

  17. Rejected "bottom-line" racial or gender balance defense to a discriminatory pass/fail barrier (Connecticut v. Teal)

    a particular employment practice that causes a disparate impact

    (formerly `variant bottom-line-balance`) Rejected defense that overall ("bottom-line") hiring numbers excuse a discriminatory pass/fail barrier within the selection process Rejected defense under Connecticut v. Teal (457 U.S. 440 (1982)) and Costa v. Markey: a favorable "bottom line" does not immunize an employer from justifying a specific pass/fail barrier that disproportionately excludes members of a protected group.

  18. Rejected defense that an adverse CBA arbitration precludes a Title VII action (Alexander v. Gardner-Denver)

    unlawful employment practice

    (formerly `variant cba-arbitration-no-preclusion`) Prior adverse arbitration under a collective bargaining agreement does not bar an employee's statutory Title VII action Under Alexander v. Gardner-Denver Co. (415 U.S. 36 (1974)), an adverse arbitral decision under a collective-bargaining agreement that covers only contractual rights does not preclude a statutory Title VII lawsuit.

  19. Subsection (n) limits challenges to covered litigated or consent judgments or orders

    an employment practice that implements and is within the scope of a litigated or consent judgment or order

    SCOPE_QUALIFIER: subsection (n)(1) preclusion requires either actual notice plus reasonable opportunity to object, or adequate prior representation on the same grounds/facts absent intervening change. Paragraphs (n)(2)(A)-(D) preserve intervention, party/class rights, fraud/collusion/jurisdiction challenges, and due process; (n)(3) specifies forum for nonprecluded actions. This is not a blanket defense or independent liability claim.

  20. adverse-action-a2 statutory route or exception

    to limit, segregate, or classify his employees or applicants for employment

    This block records the subsection-specific route or exception; it is not a universal conjunct of every Title VII claim.

  21. employment-agency-route statutory route or exception

    for an employment agency to fail or refuse to refer for employment

    This block records the subsection-specific route or exception; it is not a universal conjunct of every Title VII claim.

  22. labor-organization-route statutory route or exception

    to exclude or to expel from its membership

    This block records the subsection-specific route or exception; it is not a universal conjunct of every Title VII claim.

  23. labor-organization-causation statutory route or exception

    to cause or attempt to cause an employer to discriminate against an individual in violation of this section

    This block records the subsection-specific route or exception; it is not a universal conjunct of every Title VII claim.

  24. training-program statutory route or exception

    any employer, labor organization, or joint labor-management committee controlling apprenticeship

    This block records the subsection-specific route or exception; it is not a universal conjunct of every Title VII claim.

  25. religious-institution statutory route or exception

    a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion

    This block records the subsection-specific route or exception; it is not a universal conjunct of every Title VII claim.

  26. communist-organization statutory route or exception

    shall not be deemed to include any action or measure taken

    This block records the subsection-specific route or exception; it is not a universal conjunct of every Title VII claim.

  27. national-security statutory route or exception

    the occupancy of such position

    This block records the subsection-specific route or exception; it is not a universal conjunct of every Title VII claim.

  28. indian-preference statutory route or exception

    Nothing contained in this subchapter shall apply to any business or enterprise on or near an Indian reservation

    This block records the subsection-specific route or exception; it is not a universal conjunct of every Title VII claim.

  29. no-preference-imbalance statutory route or exception

    Nothing contained in this subchapter shall be interpreted to require

    SCOPE_QUALIFIER: subsection (j) says imbalance alone does not require preferential treatment. This is a rule of construction, not a statutory exemption from discrimination liability.

  30. k2-intentional-limit statutory route or exception

    A demonstration that an employment practice is required by business necessity may not be used as a defense against a claim of intentional discrimination under this subchapter.

    SCOPE_QUALIFIER: subsection (k)(2) bars business necessity as a defense to intentional discrimination; it is not an additional element or a freestanding claim.

  31. k3-controlled-substance statutory route or exception

    rule barring the employment of an individual who currently and knowingly uses or possesses a controlled substance

    SCOPE_QUALIFIER: subsection (k)(3) addresses an alternative employment practice involving a rule against current knowing controlled-substance use/possession, with its statutory exceptions. This is not a requirement to discriminate or a freestanding offense.

  32. test-score-discrimination statutory route or exception

    adjust the scores of, use different cutoff scores for, or otherwise alter the results

    This block records the subsection-specific route or exception; it is not a universal conjunct of every Title VII claim.

  33. judgment-order-scope statutory route or exception

    an employment practice that implements and is within the scope of a litigated or consent judgment or order

    This block records the subsection-specific route or exception; it is not a universal conjunct of every Title VII claim.

Cases

  1. Ginger v. District of Columbia 477 F. Supp. 2d 41 (2007)

    civil; reverse race discrimination, retaliation and hostile-environment claims by eight police canine officers over a unit-wide reorganization; defendants' renewed motion for summary judgment granted (result: claimant-lost)

  2. Glenn v. Raymour 832 F. Supp. 2d 539 (2011)

    civil; race disparate-treatment discharge claim (with abandoned hostile-environment and retaliation claims; parallel 1981 and PHRA claims); employer's motion for summary judgment granted (result: claimant-lost)

  3. Martinelli v. Bancroft Chophouse, LLC 357 F. Supp. 3d 95 (2019)

    civil; Title VII (and M.G.L. c. 151B) sexual harassment: hostile work environment, quid pro quo, retaliation and constructive discharge; employer's motion for summary judgment allowed on all claims (D. Mass.) (result: claimant-lost)

  4. Evans v. Staples, Inc. 375 F. Supp. 3d 117 (2019)

    civil; pro se Title VII race-discrimination (disparate treatment) claim by a temporary worker; Rule 12(b)(6) motion granted as to the individual supervisor and denied as to Staples (D. Mass.); state c. 151B claims dismissed as time-barred (result: mixed)

  5. Beck v. Figeac Aero N. Am., Inc. 382 F. Supp. 3d 1170 (2019)

    civil; Title VII (and Kansas Act) "reverse" national-origin discrimination by an American employee of a French-managed firm: hostile work environment, retaliation, constructive discharge; employer's Rule 12(b)(6) motion denied on all three, granted only on a separate failure-to-conciliate claim (D. Kan.) (result: claimant-won)

  6. Henderson v. Mass. Bay Transp. Auth. 384 F. Supp. 3d 199 (2019)

    civil; Title VII race discrimination (failure to promote) and retaliation (denied overtime "podium duty"); transit authority's motion for summary judgment allowed on both counts (D. Mass.) (result: claimant-lost)

  7. Turner v. Barber-Scotia College 604 F. Supp. 1450 (1985)

    civil; bench trial, findings of fact and conclusions of law; two white professors v. predominantly black college (Title VII and 42 U.S.C. 1981 discharge claims, plus 2000e-3 retaliation) (result: claimant-lost)

  8. Breech v. Alabama Power Co. 962 F. Supp. 1447 (1997)

    civil; religious-discrimination discharge (disparate treatment + failure to accommodate) and retaliation against employer and union; defendants' motions for summary judgment granted (result: claimant-lost)

  9. Costa v. Markey 706 F.2d 1 (1982)

    civil; bench judgment for applicant (back pay) on disparate-impact theory; employer appeal; panel on rehearing after Connecticut v. Teal affirms liability (Costa II, 1982), then en banc court reinstates original reversal (1983) -- both opinions are in this one record (result: claimant-lost)

  10. Doe v. C.A.R.S Protection Plus, Inc. 527 F.3d 358 (2008)

    civil; sex (pregnancy/abortion) discriminatory-discharge claim; summary judgment for employer reversed on plaintiff's appeal by CA3 (result: remanded)

  11. Hiatt v. Colorado Seminary 858 F.3d 1307 (2017)

    civil; sex-discrimination and retaliation claims (Title VII and Title IX) by demoted university psychologist; summary judgment for employer affirmed by CA10 on lack of pretext (alternative ground as to discrimination) (result: claimant-lost)

  12. Garcia v. Salvation Army 918 F.3d 997 (2019)

    civil; Title VII religion-based hostile work environment and retaliation claims (plus ADA) against a church employer; summary judgment for the employer under the religious organization exemption, 42 U.S.C. 2000e-1(a), affirmed (9th Cir.) (result: claimant-lost)

  13. Sacchi v. Ihc Health Servs., Inc. 918 F.3d 1155 (2019)

    civil; Title VII sex and religious discrimination (with ADA and ADEA claims) by an unpaid hospital intern; Rule 12(b)(6) dismissal for lack of employee status affirmed (10th Cir.) (result: claimant-lost)

  14. Spencer v. VIRGINIA STATE UNIVERSITY 919 F.3d 199 (2019)

    civil; Title VII sex wage discrimination and Equal Pay Act; summary judgment for university affirmed by CA4 (result: claimant-lost)

  15. Luceus v. Rhode Island 923 F.3d 255 (2019)

    civil; Title VII race discrimination (non-promotion) and disparate impact; summary judgment for state employer affirmed by CA1 (result: claimant-lost)

  16. Figueroa v. Pompeo 923 F.3d 1078 (2019)

    civil; Title VII national-origin non-promotion (disparate treatment) and disparate impact; summary judgment for the Secretary of State affirmed on disparate impact, reversed on disparate treatment; denial of plaintiff's cross-motion vacated in part and remanded (CADC) (result: mixed)

  17. Mawakana v. Bd. of Trs. of the Univ. of the Dist. of Columbia 926 F.3d 859 (2019)

    civil; Title VII race discrimination (denial of academic tenure and termination); summary judgment for university reversed by CADC and remanded (result: remanded)

  18. Mayorga v. Merdon 928 F.3d 84 (2019)

    civil; Title VII race and national origin discrimination (failure to promote), single-motive theory; summary judgment for employer vacated by CADC and remanded for trial (result: remanded)

  19. Mahler v. First Dakota Title Ltd. P'ship 931 F.3d 799 (2019)

    civil; Title VII retaliation (§ 2000e-3), sex-based hostile work environment and sex discrimination (termination); summary judgment for employer affirmed by CA8 (discrimination claim held waived on appeal) (result: claimant-lost)

  20. St. Mary's Honor Center v. Hicks 509 U.S. 502 (1993)

    civil; bench trial for employer, CA8 reversed (judgment for employee as a matter of law once reasons disbelieved); certiorari by employer (result: remanded)

  21. Desert Palace, Inc. v. Costa 539 U.S. 90 (2003)

    civil; jury verdict for employee after mixed-motive instruction, reinstated by CA9 en banc; certiorari by employer on whether direct evidence is required for a (m) instruction (result: claimant-won)

  22. Ricci v. DeStefano 557 U.S. 557 (2009)

    civil; cross-motions for summary judgment, granted for employer and affirmed by CA2; certiorari by firefighters; Supreme Court reverses and holds plaintiffs entitled to summary judgment on disparate treatment (result: claimant-won)