Preventing Workplace Harassment, Discrimination, and Retaliation

decision that adversely affects an applicant or employee. 68 In other words, an employer intentionally discriminates against an applicant or employee when the employer treats the applicant or employee differently because of the applicant or employee’s protected status.

In order to establish a prima facie case of intentional discrimination, the applicant or employee must establish the following four factors:

 The applicant or employee is a member of a protected class;

 The applicant or employee was qualified for the position for which The applicant or employee applied, or was performing the job in a manner consistent with the employer’s legitimate expectations;

 The applicant or employee suffered an adverse employment action; and

A discriminatory motive. 69



1. A DVERSE E MPLOYMENT A CTION – D EFINED An “adverse employment action” encompasses far more than just a suspension, demotion, or termination. However, not all unwelcome employment actions constitute an adverse employment action. Generally, in order to constitute adverse employment action, the action must be reasonably likely to deter reasonable employees from engaging in protected activities. This is similar to the standard used in evaluating retaliation claims. Consequently, to be materially adverse, an employee’s working conditions must be disrupted, and not just inconvenienced. 70 (See Section 7, part B for further discussion regarding adverse employment action.)

Once the employee or applicant establishes a prima facie case of disparate treatment, the burden shifts to the employer who must:  Articulate a legitimate, nondiscriminatory reason for the adverse employment action, i.e., give a business reason why it took or failed to take the action. If the employer establishes a legitimate, nondiscriminatory reason, the burden shifts to the applicant or employee who must prove that:  The employer’s stated reason is not the real reason, i.e., it is pretextual and an excuse for actual discrimination; 71  The real reason for the employer’s action is discriminatory, (i.e., based on the employee or applicant’s protected status).

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Preventing Workplace Harassment, Discrimination, and Retaliation ©2019 (s) Liebert Cassidy Whitmore 18