How should and employer determine if an employee is qualified?

An employee must show that he or she was a decent employee. This may be done by showing that he or she generally received positive job performance reviews until a specific time during their time in the workplace. The employee may also be able to point to whether the employee is performing as well as other employees.

What is an adverse employment action?

An adverse employment action is an action taken by an employer that results in a significant change in the employee's status in the workplace. Examples of adverse employment actions include: discharges (firings), refusals to hire, promotion denials, demotions, reassignments with significantly different responsibilities, or a decision causing a significant change in benefits.

Would a negative performance evaluation constitute an adverse employment action?

In general, a negative performance evaluation does not constitute an adverse employment action unless the evaluation has an adverse impact on an employee's wages or salary. Thus, to characterize a negative performance evaluation as an adverse employment action, the plaintiff must point to a tangible employment action that she alleges she suffered, or is in jeopardy of suffering, because of the downgraded evaluation.

If an employee presents a prima facie (or basic) case of discrimination, what must the employer show?

If an employee establishes a threshold showing of discrimination, then the employer must present a legitimate nondiscriminatory reason for the discharge. Examples of legitimate, nondiscriminatory reasons for discharge include that the employee was often tardy to work, showed insubordination to a superior, did not meet performance evaluation standards or violated other company policies. Often, a discrimination claim—if it goes to a jury—rests on whether the jury believes that the employee was subject to an adverse employment action for a discriminatory reason or for a legitimate reason.

If an employer does present a legitimate, nondiscriminatory reason for the discharge then what must the employee do to prove his or her case?

If the employer presents a seemingly plausible and legal reason for its action against the employee, the employee must show that the employer's actual stated reasons were pretextual or false. For example, if an employer says that it fired an employee because of her excessive tardiness, the employee may be able to show that other employees who were tardier than she were not disciplined. Or the employee may be able to show that the tardiness claim by the employer was simply not the actual reason for the discharge.

Does Title VII apply to harassing behavior on the part of employers?

Yes, Title VII prohibits much racial, sexual, or religious harassment in the employment relationship. Title VII protects employees from such harassment if such harassment is unwelcome and is severe or pervasive. The "severe and pervasive" requirement means that the harassment must be more than an occasional bad comment but generally must occur enough that it makes it much more difficult for an employee to do his or her job. As several courts have written, Title VII is "not a general civility code." In legal parlance, it must alter the terms and conditions of the workplace.

The U.S. Supreme Court also has distinguished between harassment committed by a co-employee and harassment committed by a supervisor. If the harassment is committed by a co-employee, the employer is liable if the employer knew or should have known of the harassing behavior. If the harassment was committed by a supervisory employee and the employee was discharged or suffers another similar type of tangible employment action, then the employer may be strictly liable.

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