Helaine is claiming intentional discrimination. There are two separate models to
prove this, which are the Burdine/Hicks Model and the Mixed Motives Model.
For Helaine, the best model to use is the Mixed Motives Model. When using
Mixed Motives, Slacker Dan has to PROVE (not articulate or produce, as is the
case with Burdine/Hicks) that he would have made the same decision regardless
of Helaine’s sex, race, etc. Clearly, this is much more difficult to do. In short,
winning the case is much harder for Slacker Dan to do if Mixed Motives is used.
Also, even if Helaine loses, she can still receive some compensation in attorney’s
fees or some other award. Additionally, if Mixed Motives Model is used, Slacker
Dan will most likely want to simply settle the case, because of the fact that juries
tend to side with the plaintiff.
In the Mixed Motives Model, the first step involves Helaine proving a prima facie
case, which she can do by showing that she is in a protected class, she is
minimally qualified and applied, there was adverse employment action (fired, not
hired, etc.), and that the position remained open and was ultimately filled by a
person not in her protected class. Next, Helaine has to prove that discrimination
was a motivating factor in her not being hired as general manager. Lastly, Slacker
Dan has to prove (not articulate or produce, as with Burdine/Hicks) that he would
have made the same decision regardless of Helaine’s race, sex, etc. If Slacker Dan
is incapable of proving this, then Helaine wins.
Under the Civil Rights Act of 1991, if Helaine proves that any sort of
discrimination was a motivating factor, then the judge can award attorney’s fees,
costs, or declaratory judgment, which says that Slacker Dan was wrong.
Unfortunately, if Burdine/Hicks is used instead of Mixed Motives, these damages
will not be rewarded. They are only awarded if the Mixed Motives Model is used.
Slacker Dan DOES NOT have an affirmative defense. He could not use the Bona
Fide Occupational Qualification (BFOQ) defense, which says that his decision
was reasonably necessary to the normal operations of the particular business or
enterprise. Hiring Helaine would not go against the essence of the business. While
some may argue that some patrons of the pub would be unhappy with a female
general manager, that is not reason enough to not hire her.
As stated in the case, Helaine did not know why she was not hired, but she did not
believe it was because she was a Mets fan, since half of the staff were Mets’ fans.
If she were to try to take Slacker Dan to court for discriminating against Mets
fans, she would lose immediately. This is because Mets fans are not a protected
class, and also because, as she knows herself, half of the staff were Mets’ fans.
This proves that Slacker Dan does not discriminate against those who choose to