Preventing Workplace Harassment, Discrimination, and Retaliation

2. D ISCRIMINATORY M OTIVES - “M IXED M OTIVE ” Unlawful discrimination also occurs when an employment decision is motivated, in part, by discriminatory considerations, even though other lawful and legitimate considerations may have also supported the employment decision. 72 An applicant or employee may prevail in a discrimination lawsuit if the individual can prove that discrimination was a substantial motivating reason for the employer’s adverse employment action. 73

In discrimination and retaliation lawsuits, an employee must prove that a protected category was a substantial motivating reason for an adverse employment decision. However, in lawsuits alleging harassment, denial of reasonable accommodation, failure to engage in the interactive process, or failure to provide certain leaves of absence, the standard is much lower. In these cases an employee only need prove that it was just a motivating reason. 74

LCW Practice Advisor

While an employer may be liable in a mixed-motive discrimination case, the remedies for an applicant or an employee are much more limited. For example, the court could award declaratory and/or injunctive relief, attorney’s fees, and costs directly attributable to the pursuit of the claim, but may not award monetary damages or reinstatement. 75 B. D ISPARATE I MPACT Disparate impact discrimination occurs when an employer’s facially neutral policy or practice results in a disproportionate adverse impact on a protected group of persons, such as a particular racial or ethnic group. To prevail on a disparate impact claim, the applicant or employee must prove either:  That an employment policy or practice results in a disparate impact on a protected group of persons, and the employer cannot demonstrate that the policy or practice is job-related and consistent with business necessity; or  A less discriminatory alternative practice is available but the employer refuses to adopt it. 76

The two defenses available to an employer in a disparate impact discrimination claim are:



Business necessity

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Bona fide occupational qualification

1. B USINESS N ECESSITY D EFENSE An employer can defeat a claim of disparate impact by demonstrating that the challenged employment policy or practice is job-related and consistent with business necessity . However, the defense of business necessity is not a defense to a claim of disparate treatment. 77 To

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