Problem Doctrine Explanations
1. Stray remarks, e.g., discounting the probative value of comments that reflect bias or stereotyping.
2. Jump off the page and slap you in the face, e.g., where plaintiff is better qualified, must show that her qualifications are "head and shoulders above"; or dramatically better (i.e., issue in Ash v. Tyson Foods, Aka v. Wash. Hosp. Ctr., etc.).
3. Timing is meaningless, e.g., no inference of retaliation from timing unless timing very close in time to the protected act.
4. Identical comparator,e.g.,prima facie case of discriminatory discipline requires a nearly identical comparator; disparate discipline requires identical conduct under identical supervisor.
5. Unreasonable specificity, e.g. Twombly and Iqbal (must allege and plead very specific facts showing discriminatory intent).
6. No excuse for not complaining about harassment,e.g., fear of retaliation does not justify not complaining under Faragher and Ellerth.
7. Severe or pervasive is a matter of law,e.g., whether harassment was bad enough to create a hostile work environment is a question of law to be decided by judges based on past circuit precedent.
8. No class actions, meaning provision for damages under Title VII now bars class actions
9. Accepting testimony from interested witnesses as "undisputed" that a jury would not be required to believe; granting SJ based on "undisputed" testimony about a defense witness's subjective knowledge, belief or opinion (e.g., supervisor denies knowing of plaintiff's filing of EEO charge; supervisor asserts that education was the decisive factor in a non-selection case).
10. "Adverse action" threshold, holding that some actions are not sufficiently "adverse" to be actionable even if discriminatory.
11. Narrow definition of "direct evidence" to disregard evidence that was not quite direct enough.
12. Equating "pretext" under McDonnell Douglas with falsity, e.g., a statement that is true cannot be a pretext, even if that fact was not the actual motivation.
13. Must bowl a strike, e.g., plaintiff must prove that all of an employer's proffered reasons were false, or SJ for employer.
14. Same actor inference, e.g., the person who hired you couldn’t possibly be the one who discriminated against you.
15. Employer EEO procedures sacrosanct, under Faragher and Ellerth a complaint of harassment is not enough to defeat affirmative defense unless it was made to a particular supervisor or HR, officially, in the manner prescribed or on the correct form, or using magic words.
16. Cat’s paw/isolating decision maker, e.g., ignoring evidence that some participants had unlawful motivations by accepting employer’s (disputed) assertions as to identity of the “true” decision maker and that s/he acted independently of input from others.
17. Same decision defense, e.g., despite evidence of discrimination, employer would have made the same decision or taken the same action anyway.
18. Mistaken but sincere belief, e.g., an employer can prevail on SJ based on a factually wrong premise by asserting that it sincerely believed it at the time.
19. Boss is same EEO category as plaintiff.
20. Business judgment rule/Courts are not “super personnel offices,” e.g.deferring to employer’s testimony under guise of saying employer is in a better position to determine who is better or less qualified.
21. Excluding “me, too” evidence,e.g., disregarding testimony from co-workers regarding similar treatment or bias.
22. Self-serving/disregarding plaintiff’s opinions, e.g., disregarding plaintiff’s testimony by labeling it as “self-serving” or that plaintiff’s opinion as to his/her own qualifications/abilities is irrelevant.
