Source: law/42usc2000e-2.law
# 42 U.S.C. § 2000e-2 — Unlawful employment practices (Title VII of the Civil Rights Act of 1964, § 703)
# Reverse-engineered from verbatim statutory text + citing cases in statute_cited_by.json & neov2/cases/42usc2000e-2/
law 42usc2000e-2
cite 42 U.S.C. § 2000e-2
title Unlawful employment practices (Title VII of the Civil Rights Act of 1964, § 703)
url https://www.neochart.com/catalog/federal/civil_rights/title_42/chapter_21/section_2000e_2/title42_sec2000e_2_08de5bfae7d0/2000e_2_unlawful_employment_practices_0001/index.html
address catalog/federal/civil_rights/title_42/chapter_21/section_2000e_2/title42_sec2000e_2_08de5bfae7d0/2000e_2_unlawful_employment_practices_0001/index.html
source ir/usc/title42.jsonl#title42_sec2000e-2 sha1=6c2b7b4095509838d47c1c9632cfa67fe0c215e8 chars=14576
claim (a)-disparate-treatment : employer & protected-class & adverse-action & because-of
gloss Qualified and pretext are inferential frameworks documented below; they are not universal statutory conjuncts. Employer reasons and exceptions are scoped by the applicable route.
claim (a2)-classification : employer & protected-class & adverse-action-a2 & because-of
gloss Subsection (a)(2) classification, segregation, or limitation route; it is an alternative employer practice, not an added conjunct to (a)(1).
claim (b)-employment-agency : employer & protected-class & employment-agency-route & because-of
gloss Employment-agency referral/classification route under subsection (b); `employer` is a covered-entity vocabulary label.
claim (c)-labor-organization : employer & protected-class & labor-organization-route & because-of
gloss Labor-organization membership, referral, and causation routes under subsection (c).
claim (d)-training-program : employer & protected-class & training-program & because-of
gloss Apprenticeship and training-program admission/employment route under subsection (d).
gloss Intentional discrimination (single-motive / McDonnell Douglas pretext framework) under § 2000e-2(a)(1)-(2).
claim (m)-mixed-motive : employer & protected-class & adverse-action & motivating-factor & !bfoq
gloss Mixed-motive intentional discrimination under § 2000e-2(m), subject to the 42 U.S.C. § 2000e-5(g)(2)(B) partial remedy-limiting defense (`x-same-decision`).
claim (a)-hostile-environment : employer & protected-class & because-of & hostile-environment & hostile-environment.employer-liability
gloss Harassment altering the terms, conditions, or privileges of employment under § 2000e-2(a)(1).
claim (k)-disparate-impact : employer & protected-class & impact & (!impact.business-necessity | impact.alternative) & !bona-fide-seniority-or-merit-system
gloss Facially neutral practice causing disproportionate adverse impact under § 2000e-2(a)(2) and (k)(1)(A).
claim (l)-test-scores : employer & protected-class & adverse-action & because-of
gloss Subsection (l) prohibits discriminatory adjustment, cutoff, or alteration of employment-test results.
claim (j)-religious-accommodation : employer & protected-class & x-failure-to-accommodate
gloss Failure to reasonably accommodate an employee's religious observance or practice under §§ 2000e-2(a)(1) and 2000e(j).
claim (3a)-retaliation : employer & retaliation & retaliation.protected-activity
gloss Retaliation for opposing unlawful employment practices or participating in Title VII proceedings under 42 U.S.C. § 2000e-3(a).
constraint mcdonnell-douglas-burden-shifting(employer-reason, pretext) : Once the employer satisfies its burden of production on `employer-reason` (without credibility assessment), the McDonnell Douglas presumption drops out and the plaintiff must prove `pretext` and ultimate intentional discrimination (`because-of`).
rule /us/509/0502-01 @8673..8880 | In the nature of things, the determination that a defendant has met its burden of production (and has thus rebutted any legal presumption of intentional discrimination) can involve no credibility assessment.
rule /us/509/0502-01 @19772..19934 | But a reason cannot be proved to be “a pretext for discrimination” unless it is shown both that the reason was false, and that discrimination was the real reason.
constraint pretext-permits-inference-of-because-of(pretext, because-of) : Rejection of the employer's proffered reason permits (so no additional proof is required as a matter of law), but does not compel, the factfinder to find intentional discrimination (`because-of`).
rule /us/509/0502-01 @11272..11545 | Thus, rejection of the defendant’s proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination, and the Court of Appeals was correct when it noted that, upon such rejection, “[n]o additional proof of discrimination is required,”
rule /us/509/0502-01 @27222..27370 | It is not enough, in other words, to disbelieve the employer; the factfinder must believe the plaintiff’s explanation of intentional discrimination.
constraint mixed-motive-vs-same-decision(motivating-factor, x-same-decision) : Establishing `motivating-factor` under § 2000e-2(m) establishes liability; `x-same-decision` under § 2000e-5(g)(2)(B) does not defeat liability, but restricts the available remedies to declaratory/injunctive relief and attorney's fees.
rule /us/539/0090-01 @4084..4267 | In order to avail itself of the affirmative defense, the employer must “demonstrate] that [it] would have taken the same action in the absence of the impermissible motivating factor.”
constraint disparate-treatment-vs-disparate-impact(because-of, x-disparate-impact-compliance) : Intentional race-based action (`because-of`) cannot be justified by business necessity (§ 2000e-2(k)(2)) and can be justified by avoiding disparate-impact liability (`x-disparate-impact-compliance`) only upon a strong basis in evidence.
gloss Ricci's strong-basis rule is a hypothetical disparate-impact defense nested inside an intentional-discrimination dispute; it does not turn the case into an adjudicated § 2000e-2(k) claim.
rule /us/557/0557-01 @46788..47141 | We hold only that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.
# ---------------------------------------------------------------------------
# Covered Entity & Protected Status
# ---------------------------------------------------------------------------
element employer : or
name Covered entity: employer, employment agency, or labor organization
text @63..123 | It shall be an unlawful employment practice for an employer-
text @739..807 | It shall be an unlawful employment practice for an employment agency
text @1122..1191 | It shall be an unlawful employment practice for a labor organization-
xref 42 U.S.C. § 2000e(b) | The term "employer" means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person
rule /f-supp/962/1447-01 @20836..21002 | Since the Union is not Breech’s employer, it cannot be liable under this specific cause of action; such an action may lie only against the employer, in this case APC.
variant private-employer | Private corporate or institutional employer with 15+ employees
variant public-employer | Municipal, state, or federal government agency employer
variant labor-organization | Labor union sued under § 2000e-2(c) (e.g., causing an employer to discriminate under (c)(3))
gloss 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)).
element protected-class : or
name Protected trait: race, color, religion, sex (including pregnancy/abortion), or national origin
text @349..395 | race, color, religion, sex, or national origin
xref 42 U.S.C. § 2000e(j), (k) | Definitions of "religion" (all aspects of religious observance and practice, as well as belief) and "because of sex" (including pregnancy, childbirth, or related medical conditions)
rule /f3d/858/1307-01 @16142..16285 | Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against an individual “because of such individual’s ... sex.”
rule /f3d/527/0358-01 @8078..8325 | Clearly, the plain language of the statute, together with the legislative history and the EEOC guidelines, support a conclusion that an employer may not discriminate against a woman employee because she has exercised her right to have an abortion.
rule /f3d/527/0358-01 @12960..13151 | Therefore, in a case alleging pregnancy discrimination, to raise an inference of any unlawful discharge a plaintiff must adduce evidence that she was pregnant, and, that the employer knew it.
rule /f-supp-2d/477/0041-01 @7138..7307 | In reverse discrimination cases, a plaintiff must do more than simply show that he is white in order to make out the first prong of a prima facie case of discrimination.
rule /f-supp-2d/477/0041-01 @7802..8182 | To demonstrate background circumstances, a plaintiff must provide evidence from one of the following categories: (1) evidence indicating that the employer “ ‘has some reason or inclination to discriminate invidiously against whites’ ”; or (2) evidence indicating that “ ‘there is something “fishy” about the facts of the case at hand that raises an inference of discrimination.’ ”
rule /f-supp/962/1447-01 @25400..25677 | (1) that he is a member of and/or practices a particular religion, (2) that he was qualified for the job from which he was discharged, (3) that he was discharged, and (4) that his former position was filled by a person of a different religion or a person of no religion at all.
variant race | Racial group membership (minority or reverse-discrimination majority)
variant religion | Religious belief, observance, or Sabbath practice
variant sex | Sex, pregnancy, childbirth, or related medical condition (including abortion)
variant national-origin | National origin or ancestry
gloss 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.
element qualified : and
name Qualified for the position / meeting legitimate employer expectations
text @128..184 | to fail or refuse to hire or to discharge any individual
rule /f-supp-2d/832/0539-01 @40819..40965 | In establishing the third element of his prima facie case, Glenn need only show that he was discharged from a position for which he was qualified.
rule /f-supp/604/1450-01 @19779..20042 | Although both were clearly well qualified for the job, a question arises whether near the end of their tenures (used in the nontechnical sense of the word) at BSC, Turner and Goetzman were performing satisfactorily according to the legitimate expectations of BSC.
rule /f-supp/604/1450-01 @23828..24032 | In determining whether Turner and Goetzman were satisfying BSC’s legitimate expectations, the Court is constrained to give great credence to President McLean’s articulation of what those expectations are.
variant qualified | Objective qualifications for the position or satisfactory performance meeting the employer's legitimate expectations
gloss 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.
# ---------------------------------------------------------------------------
# Disparate Treatment: Adverse Action, Causation & McDonnell Douglas Stages
# ---------------------------------------------------------------------------
element adverse-action : or
name Adverse employment action affecting compensation, terms, conditions, privileges, or status
text @128..318 | 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
text @404..628 | to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee
rule /f3d/858/1307-01 @18344..18609 | For discrimination claims, “[a]n adverse employment action is a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”
rule /f3d/858/1307-01 @23022..23124 | “To establish constructive discharge, a plaintiff must show that she had no other choice but to quit.”
rule /f-supp-2d/477/0041-01 @10619..10891 | An employee suffers an adverse employment action if he experiences “materially adverse consequences affecting the terms, conditions, or privileges, of employment or future employment opportunities such that a reasonable trier of fact could find objectively tangible harm.”
variant refusal-to-hire | Failure to hire or promote
variant discharge | Termination or constructive discharge (working conditions so intolerable a reasonable person had no choice but to quit)
variant compensation-or-terms | Tangible change in compensation, terms, conditions, or privileges of employment
gloss Actionable harm to employment status or terms, conditions, or privileges of employment under § 2000e-2(a)(1)-(2).
element because-of : and
name Discriminatory causation ("because of" protected trait)
text @320..395 | because of such individual's race, color, religion, sex, or national origin
rule /us/557/0557-01 @34306..34494 | Without some other justification, this express, race-based decisionmaking violates Title VIPs command that employers cannot take adverse employment actions because of an individual’s race.
rule /us/509/0502-01 @35543..35806 | Title VII does not award damages against employers who cannot prove a nondiscriminatory reason for adverse employment action, but only against employers who are proven to have taken adverse employment action by reason of (in the context of the present case) race.
rule /f-supp-2d/477/0041-01 @15389..15579 | an employee alleging discrimination based on changed conditions or terms of employment must make some sort of showing that the change affected him in some way different from other employees.
rule /f-supp-2d/477/0041-01 @15830..16037 | If every single employee in a racially diverse Canine Unit faces the same change in the terms and conditions of his employment after a reorganization, there are no “distinctions or differences in treatment.”
rule /f-supp-2d/832/0539-01 @21739..21858 | To be “similarly situated,” the plaintiff must show that “the other employee’s acts were of ‘comparable seriousness.’ ”
rule /f3d/858/1307-01 @25042..25291 | An employee is similarly situated to the plaintiff if the employee shares the same supervisor, is subject to the same standards governing performance evaluation and discipline, and has similar relevant employment circumstances, such as work history.
rule /f-supp/962/1447-01 @23883..24048 | To succeed under the theory of disparate treatment, Breech must show that his employer treated him differently than other employees because of his religious beliefs.
rule /f-supp/962/1447-01 @26020..26286 | Alternatively, Breech may satisfy the fourth requirement by showing that he was terminated while others having comparable or lesser qualifications and not of his religion were retained, or that he suffered from differential application of work or disciplinary rules.
rule /f3d/527/0358-01 @13591..13708 | The fourth element requires that a plaintiff show some nexus between her pregnancy and the adverse employment action.
rule /f3d/527/0358-01 @14309..14532 | The evidence most often used to establish this nexus is that of disparate treatment, whereby a plaintiff shows that she was treated less favorably than similarly situated employees who are not in plaintiffs protected class.
rule /f3d/527/0358-01 @23142..23362 | However, we later explained that such remarks could provide background evidence that may be critical to a jury’s determination of whether the decision-maker was more likely than not acting out of a discriminatory motive.
rule /f3d/527/0358-01 @25180..25286 | We have held temporal proximity sufficient to create an inference of causality to defeat summary judgment.
variant express-classification | Express race- or sex-based decision-making (facial or direct disparate treatment)
variant comparator-disparity | Less favorable treatment than similarly situated comparators outside the protected class
variant circumstantial-nexus | Circumstantial inference of discriminatory animus (remarks, timing, replacement outside class)
gloss Ultimate causation/intent requirement under § 2000e-2(a): the protected trait was a determinative cause of the adverse employment action.
element employer-reason : and
name Employer's legitimate, nondiscriminatory reason (McDonnell Douglas step 2)
text @320..395 | because of such individual's race, color, religion, sex, or national origin
rule /us/509/0502-01 @8673..8880 | In the nature of things, the determination that a defendant has met its burden of production (and has thus rebutted any legal presumption of intentional discrimination) can involve no credibility assessment.
rule /f-supp/962/1447-01 @27358..27555 | the burden of production shifts to the defendant employer who must then come forth with admissible evidence that articulates a legitimate, nondiscriminatory reason for the adverse employment action
not-required Persuasion or credibility assessment at step 2; the employer's burden is one of production only (St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993))
variant legitimate-nondiscriminatory-reason | Articulation of a legitimate, nondiscriminatory reason through admissible evidence
gloss 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.
element pretext : and
name Pretext for discrimination (McDonnell Douglas step 3)
text @320..395 | because of such individual's race, color, religion, sex, or national origin
rule /us/509/0502-01 @19772..19934 | But a reason cannot be proved to be “a pretext for discrimination” unless it is shown both that the reason was false, and that discrimination was the real reason.
rule /us/509/0502-01 @11272..11545 | Thus, rejection of the defendant’s proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination, and the Court of Appeals was correct when it noted that, upon such rejection, “[n]o additional proof of discrimination is required,”
rule /us/509/0502-01 @27222..27370 | It is not enough, in other words, to disbelieve the employer; the factfinder must believe the plaintiff’s explanation of intentional discrimination.
rule /f3d/527/0358-01 @27758..28132 | In order to show pretext, a plaintiff must submit evidence which (1) casts doubt upon the legitimate reason proffered by the employer such that a fact-finder could reasonably conclude that the reason was a fabrication; or (2) would allow the fact-finder to infer that discrimination was more likely than not a motivating or determinative cause of the employee’s termination.
rule /f3d/858/1307-01 @20165..20354 | “The relevant inquiry is not whether the employer’s proffered reasons were wise, fair or correct, but whether it honestly believed those reasons and acted in good faith upon those beliefs.”
rule /f3d/858/1307-01 @19839..20083 | “Evidence that the employer should not have made the [adverse employment] decision—for example, that the employer was mistaken or used poor business judgment—is not sufficient to show that the employer’s explanation is unworthy of credibility.”
rule /f-supp-2d/832/0539-01 @36224..36364 | Regardless, courts in the Third Circuit have found similar challenges to the adequacy of an investigation insufficient to establish pretext.
rule /f-supp/604/1450-01 @18070..18272 | Plaintiff’s evidence must support with “substantial” or “reasonable probability,” as distinguished from “possibility” or “speculation,” plaintiff's contention that defendant’s explanation is pretextual.
rule /f-supp/962/1447-01 @31044..31304 | a plaintiff is entitled to survive summary judgment, and judgment as a matter of law, if there is sufficient evidence to demonstrate the existence of a genuine issue of fact as to the truth of each of the employer’s proffered reasons for its challenged action.
not-required Showing merely that the employer was mistaken, conducted an imperfect investigation, or exercised poor business judgment if the employer honestly believed its proffered reason (Hiatt v. Colorado Seminary; Glenn v. Raymour)
variant falsity-and-animus | Showing that each of the employer's proffered reasons is unworthy of credence (fabricated) and a pretext for intentional discrimination
gloss 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.
element motivating-factor : and
name Impermissible motivating factor in mixed-motive cases (§ 2000e-2(m))
text @11488..11734 | 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.
rule /us/539/0090-01 @11483..11655 | Section 2000e-2(m) unambiguously states that a plaintiff need only “demonstrate]” that an employer used a forbidden consideration with respect to “any employment practice.”
rule /us/539/0090-01 @17217..17497 | In order to obtain an instruction under §2000e-2(m), a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that “race, color, religion, sex, or national origin was a motivating factor for any employment practice.”
not-required Direct evidence of discrimination to obtain a mixed-motive instruction under § 2000e-2(m); circumstantial evidence suffices (Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003))
variant mixed-motive | Protected trait was a motivating factor among other lawful factors, proved by direct or circumstantial evidence
gloss 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.
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# Hostile Work Environment (Sub-doctrine of § 2000e-2(a)(1))
# ---------------------------------------------------------------------------
element hostile-environment : and
name Severe or pervasive hostile or abusive working environment
text @258..318 | compensation, terms, conditions, or privileges of employment
rule /us/510/0017-01 @5643..5855 | Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII’s purview.
rule /us/510/0017-01 @5866..6058 | if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.
rule /us/510/0017-01 @7638..7821 | So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, Meritor, supra, at 67, there is no need for it also to be psychologically injurious.
rule /us/510/0017-01 @8291..8527 | These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.
rule /f-supp-2d/477/0041-01 @27252..27529 | A workplace is hostile for purposes of Title VII only when “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”
not-required Tangible psychological injury or nervous breakdown (Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993))
variant severe-or-pervasive | Objectively and subjectively severe or pervasive discriminatory intimidation, ridicule, and insult altering employment conditions
gloss Harassment so severe or pervasive as to alter the conditions of the victim's employment and create an objectively and subjectively abusive working environment.
element hostile-environment.employer-liability : or
name Basis for imputing harassment liability to the employer
text @63..123 | It shall be an unlawful employment practice for an employer-
rule /f-supp-2d/477/0041-01 @30291..30520 | Moreover, the Department can only be held liable for harassment of the plaintiffs by fellow employees “if the employer knew or should have known of the harassment and failed to implement prompt and appropriate corrective action.”
variant coworker-negligence | Employer knew or should have known of coworker harassment and failed to take prompt and appropriate corrective action
variant supervisor-harassment | Vicarious liability for supervisor harassment resulting in a tangible employment action or unexcused by Faragher/Ellerth
gloss Basis for imputing workplace harassment to the employer under agency principles.
# ---------------------------------------------------------------------------
# Disparate Impact (§ 2000e-2(a)(2), (k))
# ---------------------------------------------------------------------------
element impact : and
name Particular employment practice causing a disparate impact on a protected group
text @8572..8754 | 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
text @9124..9372 | With respect to demonstrating that a particular employment practice causes a disparate impact as described in subparagraph (A)(i), the complaining party shall demonstrate that each particular challenged employment practice causes a disparate impact
rule /f3d/41/1073-01 @4123..4313 | Disparate impact is the result of more subtle practices, which on their face are neutral in their treatment of different groups but which in fact fall more harshly on one group than another.
rule /us/557/0557-01 @49501..49715 | The pass rates of minorities, which were approximately one-half the pass rates for white candidates, fall well below the 80-percent standard set by the EEOC to implement the disparate-impact provision of Title VII.
rule /f2d/706/0001-01 @9397..9590 | The Court’s focus must be on the first step in the employment process that produces an adverse impact on a group protected by Title VII, not the end result of the employment process as a whole.
rule /f2d/706/0001-01 @12052..12344 | In light of Teal, we hold that when, as here, an employer uniformly applies a rule to male and female applicants and applies it in one round of hiring decisions to a pool of only female applicants; the rule must be job-related if in its regular application it has a disparate effect on women.
rule /f2d/706/0001-01 @39478..39646 | We remain unpersuaded that a hiring barrier can have a disparate impact on a protected group when competition for the job is only among members of that protected group.
not-required Proof of subjective intent to discriminate (Griggs v. Duke Power Co.; EEOC v. Francis W. Parker School, 41 F.3d 1073 (7th Cir. 1994))
variant statistical-disparity | Facially neutral selection device or pass-rate barrier causing a statistically significant adverse impact (e.g., below the EEOC four-fifths / 80% rule) on a protected group
gloss 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.
gloss 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.
element impact.business-necessity : and
name Job-related for the position in question and consistent with business necessity (§ 2000e-2(k)(1)(A)(i))
text @8759..8906 | the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity
text @10024..10199 | 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.
rule /us/557/0557-01 @32736..32897 | An employer may defend against liability by demonstrating that the practice is “job related for the position in question and consistent with business necessity.”
variant job-related-necessity | Demonstration that the challenged practice is job-related for the position in question and consistent with business necessity
gloss Employer's rebuttal burden under § 2000e-2(k)(1)(A)(i). Under § 2000e-2(k)(2), business necessity may not be used as a defense against a claim of intentional discrimination.
gloss 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.
element impact.alternative : and
name Less discriminatory alternative employment practice that the employer refuses to adopt (§ 2000e-2(k)(1)(A)(ii))
text @8916..9116 | the complaining party makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice.
rule /us/557/0557-01 @32904..33148 | Even if the employer meets that burden, however, a plaintiff may still succeed by showing that the employer refuses to adopt an available alternative employment practice that has less disparate impact and serves the employer’s legitimate needs.
variant less-discriminatory-alternative | Available alternative employment practice with less disparate impact that serves the employer's legitimate needs and that the employer refuses to adopt
gloss Plaintiff's surrebuttal under § 2000e-2(k)(1)(A)(ii): even if a practice is job-related and consistent with business necessity, liability attaches if the employer refuses to adopt a less discriminatory alternative.
# ---------------------------------------------------------------------------
# Companion Title VII Doctrines Litigated Alongside § 2000e-2
# ---------------------------------------------------------------------------
gloss 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.
element retaliation : and
name Retaliation for protected Title VII activity (42 U.S.C. § 2000e-3(a))
text @128..237 | to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual
xref 42 U.S.C. § 2000e-3(a) | It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
rule /f-supp-2d/477/0041-01 @17204..17445 | In order to make out a prima facie case of retaliation, a plaintiff must show that (1) he engaged in a statutorily protected activity; (2) the employer took an adverse action against him; and (3) there is a causal connection between the two.
rule /f-supp-2d/477/0041-01 @22301..22454 | The mere initiation of an investigation into a plaintiffs conduct is not an adverse employment action when it has no effect on the plaintiffs employment.
rule /f3d/858/1307-01 @18900..19165 | For retaliation claims, “a plaintiff must show that a reasonable employee would .have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
rule /f3d/858/1307-01 @31017..31114 | DU could not retaliate for Dr. Hiatt’s protected activity until she had engaged in such activity.
rule /f-supp/962/1447-01 @38762..38968 | (1) that he engaged in a statutorily protected expression, (2) that he suffered an adverse employment action, and (3) that there is a causal relation between the protected expression and the adverse action.
rule /f-supp/962/1447-01 @40009..40266 | where a substantial period of time has elapsed between the two events — engagement in the protected activity and the adverse employment action — the causal connection is less likely to exist absent evidence demonstrating a connection between the two events.
variant materially-adverse-retaliation | Materially adverse action (one that well might dissuade a reasonable worker from making or supporting a charge) causally connected to protected activity
gloss 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.
element retaliation.protected-activity : or
name Protected opposition or participation activity under 42 U.S.C. § 2000e-3(a)
text @78..106 | unlawful employment practice
xref 42 U.S.C. § 2000e-3(a) | opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter
rule /f-supp/604/1450-01 @27237..27481 | In their brief plaintiffs claim that to prove retaliatory discrimination under Title VII and § 1981 they must show as one element a “protected opposition to employment practices or participation in charges of discrimination known by defendant.”
rule /f-supp/604/1450-01 @28049..28241 | the labor activity was not in response to racial policies. Thus, it was not the type of protected activity contemplated within a Title VII or § 1981 retaliation claim, and Grant is inapposite.
variant opposition | Internal or external opposition to unlawful Title VII discrimination
variant participation | Filing an EEOC charge or participating in a Title VII investigation, proceeding, or hearing
gloss Protected opposition or participation under § 2000e-3(a); general labor or workplace grievances unrelated to a Title VII protected trait do not qualify as protected activity.
element x-failure-to-accommodate : and
name Failure to reasonably accommodate religious observance or practice (§§ 2000e-2(a)(1), 2000e(j))
text @362..370 | religion
xref 42 U.S.C. § 2000e(j) | The term "religion" includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.
rule /f-supp/962/1447-01 @35041..35420 | To establish a prima facie ease of failure to accommodate, Breech must prove: (1) that he had a bona fide belief that compliance with an employment requirement would be contrary to his religious belief or practice, (2) that he informed his employer about the conflict, and (3) that he was discharged or penalized for failing to comply with the conflicting employment requirement.
rule /f-supp/962/1447-01 @37277..37384 | Employer authorizations of such voluntary shift swaps constitute reasonable accommodations under Title VII.
variant religious-accommodation | Bona fide religious belief conflicting with an employment requirement, notice to employer, and discharge/penalty without reasonable accommodation
gloss 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.
# ---------------------------------------------------------------------------
# Statutory Exceptions in § 2000e-2(e), (h) & Affirmative Defenses
# ---------------------------------------------------------------------------
exception bfoq : exception
name Bona fide occupational qualification (§ 2000e-2(e)(1))
text @3135..3330 | 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
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
gloss Narrow statutory exception under § 2000e-2(e)(1) for religion, sex, or national origin (omitting race and color).
exception bona-fide-seniority-or-merit-system : exception
name Bona fide seniority/merit system or professionally developed ability test (§ 2000e-2(h))
text @5795..6277 | 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
text @6279..6602 | nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin.
variant seniority-or-merit-system | Bona fide seniority, merit, or piecework system without intention to discriminate
variant professionally-developed-test | Professionally developed ability test not designed, intended, or used to discriminate
gloss Statutory safe harbors under § 2000e-2(h) for bona fide seniority/merit systems and professionally developed ability tests.
defense x-same-decision : defense
name Mixed-motive same-decision partial affirmative defense (42 U.S.C. § 2000e-5(g)(2)(B))
text @11680..11734 | even though other factors also motivated the practice.
xref 42 U.S.C. § 2000e-5(g)(2)(B) | On a claim in which an individual proves a violation under section 2000e-2(m) of this title and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court—(i) may grant declaratory relief, injunctive relief ... and attorney's fees and costs ... and (ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment
rule /us/539/0090-01 @4084..4267 | In order to avail itself of the affirmative defense, the employer must “demonstrate] that [it] would have taken the same action in the absence of the impermissible motivating factor.”
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)
gloss 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.
defense x-disparate-impact-compliance : defense
name Strong-basis-in-evidence defense for race-conscious action taken to avoid disparate-impact liability (Ricci v. DeStefano)
text @320..395 | because of such individual's race, color, religion, sex, or national origin
rule /us/557/0557-01 @46788..47141 | We hold only that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.
rule /us/557/0557-01 @50531..50879 | The problem for respondents is that a prima facie case of disparate-impact liability — essentially, a threshold showing of a significant statistical disparity, Connecticut v. Teal, 457 U. S. 440, 446 (1982), and nothing more — is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the results.
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
gloss 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.
defense x-bottom-line : defense
name Rejected "bottom-line" racial or gender balance defense to a discriminatory pass/fail barrier (Connecticut v. Teal)
text @8628..8691 | a particular employment practice that causes a disparate impact
rule /f2d/706/0001-01 @9876..10000 | The employer cannot point to the results of its process, but must justify use of the discriminatory element in that process.
variant bottom-line-balance | Rejected defense that overall ("bottom-line") hiring numbers excuse a discriminatory pass/fail barrier within the selection process
gloss 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.
defense x-prior-arbitration : defense
name Rejected defense that an adverse CBA arbitration precludes a Title VII action (Alexander v. Gardner-Denver)
text @78..106 | unlawful employment practice
rule /f-supp/962/1447-01 @19929..20158 | In Alexander and the case sub judice, the CBA provides only for the arbitration of disputes arising under the CBA; it does not provide for the arbitration of an employee’s statutory rights, such as those arising out of Title VII.
variant cba-arbitration-no-preclusion | Prior adverse arbitration under a collective bargaining agreement does not bar an employee's statutory Title VII action
gloss 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.
exception judgment-order-preclusion : exception
name Subsection (n) limits challenges to covered litigated or consent judgments or orders
text @11934..12040 | an employment practice that implements and is within the scope of a litigated or consent judgment or order
text @12221..12351 | (B) A practice described in subparagraph (A) may not be challenged in a claim under the Constitution or Federal civil rights laws-
text @12352..12452 | (i) by a person who, prior to the entry of the judgment or order described in subparagraph (A), had-
text @12453..12833 | (I) actual notice of the proposed judgment or order sufficient to apprise such person that such judgment or order might adversely affect the interests and legal rights of such person and that an opportunity was available to present objections to such judgment or order by a future date certain; and (II) a reasonable opportunity to present objections to such judgment or order; or
text @12834..13088 | (ii) by a person whose interests were adequately represented by another person who had previously challenged the judgment or order on the same legal grounds and with a similar factual situation, unless there has been an intervening change in law or fact.
text @13089..13142 | (2) Nothing in this subsection shall be construed to-
text @13143..13377 | (A) alter the standards for intervention under rule 24 of the Federal Rules of Civil Procedure or apply to the rights of parties who have successfully intervened pursuant to such rule in the proceeding in which the parties intervened;
text @13378..13671 | (B) apply to the rights of parties to the action in which a litigated or consent judgment or order was entered, or of members of a class represented or sought to be represented in such action, or of members of a group on whose behalf relief was sought in such action by the Federal Government;
text @13672..13915 | (C) prevent challenges to a litigated or consent judgment or order on the ground that such judgment or order was obtained through collusion or fraud, or is transparently invalid or was entered by a court lacking subject matter jurisdiction; or
text @13916..14020 | (D) authorize or permit the denial to any person of the due process of law required by the Constitution.
text @14021..14362 | (3) Any action not precluded under this subsection that challenges an employment consent judgment or order described in paragraph (1) shall be brought in the court, and if possible before the judge, that entered such judgment or order. Nothing in this subsection shall preclude a transfer of such action pursuant to section 1404 of title 28.
gloss 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.
element adverse-action-a2 : or
name adverse-action-a2 statutory route or exception
text @404..479 | to limit, segregate, or classify his employees or applicants for employment
gloss This block records the subsection-specific route or exception; it is not a universal conjunct of every Title VII claim.
element employment-agency-route : or
name employment-agency-route statutory route or exception
text @783..849 | for an employment agency to fail or refuse to refer for employment
gloss This block records the subsection-specific route or exception; it is not a universal conjunct of every Title VII claim.
element labor-organization-route : or
name labor-organization-route statutory route or exception
text @1196..1238 | to exclude or to expel from its membership
gloss This block records the subsection-specific route or exception; it is not a universal conjunct of every Title VII claim.
element labor-organization-causation : or
name labor-organization-causation statutory route or exception
text @1825..1932 | to cause or attempt to cause an employer to discriminate against an individual in violation of this section
gloss This block records the subsection-specific route or exception; it is not a universal conjunct of every Title VII claim.
element training-program : and
name training-program statutory route or exception
text @2004..2100 | any employer, labor organization, or joint labor-management committee controlling apprenticeship
gloss This block records the subsection-specific route or exception; it is not a universal conjunct of every Title VII claim.
exception religious-institution : exception
name religious-institution statutory route or exception
text @3392..3536 | a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion
gloss This block records the subsection-specific route or exception; it is not a universal conjunct of every Title VII claim.
exception communist-organization : exception
name communist-organization statutory route or exception
text @4137..4195 | shall not be deemed to include any action or measure taken
gloss This block records the subsection-specific route or exception; it is not a universal conjunct of every Title VII claim.
exception national-security : exception
name national-security statutory route or exception
text @5109..5139 | the occupancy of such position
gloss This block records the subsection-specific route or exception; it is not a universal conjunct of every Title VII claim.
exception indian-preference : exception
name indian-preference statutory route or exception
text @6994..7105 | Nothing contained in this subchapter shall apply to any business or enterprise on or near an Indian reservation
gloss This block records the subsection-specific route or exception; it is not a universal conjunct of every Title VII claim.
element no-preference-imbalance : or
name no-preference-imbalance statutory route or exception
text @7416..7484 | Nothing contained in this subchapter shall be interpreted to require
gloss 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.
element k2-intentional-limit : and
name k2-intentional-limit statutory route or exception
text @10024..10199 | 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.
gloss SCOPE_QUALIFIER: subsection (k)(2) bars business necessity as a defense to intentional discrimination; it is not an additional element or a freestanding claim.
exception k3-controlled-substance : exception
name k3-controlled-substance statutory route or exception
text @10262..10375 | rule barring the employment of an individual who currently and knowingly uses or possesses a controlled substance
gloss 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.
element test-score-discrimination : and
name test-score-discrimination statutory route or exception
text @11154..11239 | adjust the scores of, use different cutoff scores for, or otherwise alter the results
gloss This block records the subsection-specific route or exception; it is not a universal conjunct of every Title VII claim.
element judgment-order-scope : and
name judgment-order-scope statutory route or exception
text @11934..12040 | an employment practice that implements and is within the scope of a litigated or consent judgment or order
gloss This block records the subsection-specific route or exception; it is not a universal conjunct of every Title VII claim.