PART ONE
Develop a fact pattern of discrimination or use one from your experiences or the experience of a friend and discuss how the case would be proven in court. First tell the story. Next, identify the relevant facts. Identify the type of discrimination. Disparate Impact or Disparate Treatment
I would like everyone to use disparate treatment for this exercise. [Obviously you must know the difference and will be able to recognize it in a fact pattern]
1. State the prima facia elements of discrimination that must be proved by the Plaintiff to go forward.
2. Apply the relevant facts to the law.
3. Discuss the shifting burden of proof
4. Discuss the employee's rebuttal if any.
5. Who wins?
At a minimum your fact pattern should meet the prima facie elements of discrimination.
PART TWO
Distinguish the business necessity defense from the bona fide occupational qualification defense, including describing each defense and stating when each can be used.