Burden of Proof Under the Employment Non-Discrimination Act
Leadership Conference on Civil Rights - July 1, 2001
For applicants or employees to state a claim of discrimination under the Employment Non-Discrimination Act (ENDA), they must prove that an entity covered under the Act (for example, an employer with more than 15 employees) discriminated against them because of their real or perceived sexual orientation.
The burden of proof under ENDA works the same as under title VII of the Civil Rights Act of 1964, the law that prohibits employment discrimination based on race, sex, religion, and national origin. Where an applicant or employee has direct evidence of discrimination based on a prohibited characteristic, he or she may use that evidence to prove that adverse actions taken by the employer were motivated by the employer's actual discriminatory intent. In most cases of discrimination, however employers do not openly acknowledge discriminatory motivations, leaving plaintiffs to prove a case of discrimination based on circumstantial evidence.
Three steps are involved in cases relying on circumstantial proof of intentional discrimination. First, the plaintiff must present sufficient evidence about the challenged action (e.g., failure to promote, hire, etc.) to constitute circumstantial evidence that the plaintiff was discriminated against because of some prohibited characteristics (e.g., sex or race under title VII, or sexual orientation under ENDA). This is called the plaintiff's prima facie case. Second, the defendant must respond by simply offering a legitimate non-discriminatory reason for the action about which the plaintiff if complaining. This is called satisfying the burden of production. Finally, the plaintiff must present evidence that demonstrates ? that is, that proves?that, despite the reason offered by the defendant, the action in reality was motivated by the defendant's intention to discriminate. This is called the burden of persuasion and may be achieved, for example, by proving that the reason offered by the defendant is merely a pretext for actual discrimination.
Under both ENDA and title VII, in cases alleging intentional discriminatory actions, the plaintiff carries the ultimate burden of persuading a court that the employer's actions were motivated by a discriminatory intent regarding the prohibited characteristic. While under Title VII a plaintiff may also challenge neutral employment practices that result in disparate impact absent an employer's discriminatory intent, in ENDA only intentional discriminatory actions are prohibited under the law.
Here is an example of how the three-step process for proving claims of intentional discrimination through circumstantial evidence would operate under ENDA. Assume Paige brings a suite against Acme Co. claiming Acme fired her because she is a lesbian. Her initial proof would consist of showing that she is a lesbian or was perceived to be a lesbian, that she had received excellent annual job evaluations for the seven years she had been working, and that Acme fired her one week after she told her supervisor she was a lesbian. This very simple, basic prima facie case would establish the necessary circumstantial evidence of discrimination to meet the first step of the process.
Acme must then offer a legitimate, non-discriminatory reason for firing Paige. Acme might say it fired Paige because her work had deteriorated significantly over the past several months or because the company was downsizing its department, it needed to fire several people, and Paige was simply not one of its star employees. All Acme has to do, as this point, is produce some legitimate, non-discriminatory reason for firing Paige.
In response, Paige must overcome the most difficult hurdle of the three-step process: she must present evidence to prove that, despite the offered reason, Acme's decision to fire her was based on Acme's real discriminatory intent regarding her sexual orientation. If Acme stated it fired Paige because of the recent deterioration of her work, Paige might attempt to show she had received positive responses from some supervisors about her work during the time period in question. If Acme claimed it was downsizing, Paige might have a harder task in proving she was, in fact, a start employee and someone who would have been retained if not for her sexual orientation. A key requirement is that Paige bears the burden of persuasion on these points. The bottom line is that Paige must prove that Acme fired her because of its actual discriminatory intent and that any of the reasons offered by Acme are merely pretexts for its discrimination based on sexual orientation.