Rule 24.9.610 - BURDEN OF PROOF-DISPARATE TREATMENT(1) To prove a claim of unlawful discrimination or illegal retaliation based on disparate treatment, a charging party must establish a prima facie case in support of the alleged violation of the act or code.(2) A prima facie case of discrimination or retaliation based on disparate treatment means evidence from which the trier of fact can infer that adverse action against the charging party was motivated by respondent's consideration of charging party's membership in a protected class, protected activity, or association with or relation to a person who is a member of a protected class or who has engaged in protected activity. (a) The elements of a prima facie case will vary according to the type of charge and the alleged violation, but generally consist of proof: (i) That charging party is a member of a protected class or engaged in protected activity;(ii) That charging party sought and was qualified for an employment, housing, service, credit or other opportunity made available by the respondent; and(iii) That charging party was denied the opportunity, or otherwise subjected to adverse action by respondent in circumstances raising a reasonable inference that charging party was treated differently because of membership in a protected class or because of protected activity.(b) Examples of evidence establishing a reasonable inference that charging party was treated differently because of membership in a protected class or because of protected activity include: (i) proof that respondent continued to make the employment, housing, service, credit, or other opportunity available to persons who are not members of the same protected class as charging party;(ii) proof that similarly situated persons outside the protected class were treated more favorably;(iii) proof that there was a close proximity in time between protected activity of the charging party and adverse action by the respondent;(iv) proof that respondent intended to discriminate against persons of the protected class; or(v) other proof that there is a causal connection between adverse action by the respondent and the charging party's membership in a protected class or protected activity.(3) Once a charging party establishes a prima facie case of unlawful discrimination or illegal retaliation based on circumstantial evidence of disparate treatment, the respondent must produce evidence of a legitimate, nondiscriminatory reason for the challenged action.(4) If a respondent produces evidence of a legitimate, nondiscriminatory reason for a challenged action in response to a prima facie case, the charging party must demonstrate that the reason offered by the respondent is a pretext for unlawful discrimination or illegal retaliation. The charging party can prove pretext with evidence that the respondent's acts were more likely based on an unlawful motive or indirectly with evidence that the explanation for the challenged action is not credible and is unworthy of belief.(5) If a charging party has established a prima facie case with direct evidence of unlawful discrimination or illegal retaliation, the respondent must prove by a preponderance of the evidence that an unlawful motive played no role in the challenged action or that the direct evidence of discrimination is not credible and is unworthy of belief.NEW, 1996 MAR p. 2871, Eff. 10/25/96.49-2-204, 49-3-106, MCA; IMP, 49-2-101, 49-2-303, 49-2-304, 49-2-305, 49-2-306, 49-2-307, 49-2-308, 49-2-403, 49-3-101, 49-3-103, 49-3-104, 49-3-201, 49-3-202, 49-3-203, 49-3-204, 49-3-205, 49-3-206, 49-3-207, and 49-3-208, MCA;