Jack is an employee of Alphabet Soup Corp. Jack's full name is Juan Carlos Smith, but he goes by "Jack" on his resume. He is of Central American heritage. He has a "standard" mid-Atlantic American accent. A position comes open in his company at a different worksite. Jack applies for the position. He sails through a very friendly first-round telephone interview and is invited to a final, in person, interview.

At the in-person interview things are decidedly frosty, even though this is the same hiring committee that he talked to in the first round interview. In the end the hiring committee hires an East Asian employee with less seniority and fewer credentials for the position. Jack believes that he was discriminated against by the committee because they could see his heritage in the in-person interview, but not from his resume, telephone discussions, and work history. Jack believes that Alphabet Soup Corp.'s higher-up managers and corporate culture would never stand for any type of illegal discrimination. The company has extensive anti-discrimination policies in place.

If Juan decides to bring a discrimination action against Alphabet Soup Corp., what will he have to show in order to prevail? What constitutes discriminatory intent with regard to an employment decision? Does it matter who the bad actor may be at Alphabet Soup Corp.?

Can you think of a situation where an employer action or decision may be influenced by the protected characteristics of an employee or applicant but does not constitute discrimination? What level of consideration of a protected characteristic constitutes a substantial motivating factor?