QUESTION 1

If you are an attorney representing a mixed race candidate to be Chief Human Resource Manager for a Coffee Manufacturer, who was fully qualified for the position but has been turned down for it, and an apparently less qualified white male has been hired for the position, what elements would you have to prove for a case of Disparate Treatment under the Civil Rights Act of 1964, and what defenses should you anticipate from the Coffee Company? What about if you are representing a woman Emergency Medical Transport candidate who has been turned down for that position because she could not lift the required 100 pounds to be eligible, could you support a Disparate Impact case on her behalf, what would you have to prove, and what reasonable accommodations would you argue for? What is a BFOQ under the Civil Rights Act, give an example, and for what Protected Class does it not apply to?

Disparate treatment refers to an employer’s bias that resulted in him singling out a person or a certain group, treating them differently in comparison to others, on the basis of a certain classification, be it race, caste, gender or sexual orientation. The legal provisions prohibiting such discrimination have been enumerated in the Title VII of the Civil Rights Act, 1964. Title VII prohibits an employer from discrimination against any individual on the basis of “race, colour, religion, sex or national origin.”

In order to prove such racial discrimination, the victim may produce either direct evidence of such discrimination, or indirect evidence for the same.

Evidence brought under Title VII alleging racial discrimination may be supported with direct evidence. When offering direct evidence, he may either prove that the employer expressly admitted his actions being guided by such intent of discrimination. The victim may otherwise present circumstantial evidence , which is usually to be found in three types. It can be indicators, such as doubtful timing of events, written or oral statements made by the employer, or unusually odd behaviour, from which inference for possible discrimination can be drawn. The victim may also bring to light that the other employees, who did not come within the protected class, were treated in a significantly different manner by the employer. Otherwise, the victim may bring to light the evidence that he/she was qualified for the job, yet however a candidate not from the protected class got the job, and the reasoning for the same by the employer is absurd.

When indirect or circumstantial evidence is brought up before the court as a basis for Title VII claim, they resort to evaluation of the evidence under the McDonnell Douglas framework. If producing the indirect evidence for the Title VII claim, the victim has to go through a three-step analysis. Firstly, the victim will have to establish a prima facie case against the employer, of discrimination, thereby establishing that the employer acted with discriminatory intent. After that, the burden then all falls on the employer, to produce legitimate and admissible evidence of his non-discriminate reasoning behind his actions.

Article titled “Hiring the Very Best,” by Tracy Mullin (2005). Bas...