Slicing & Dicing of Individual Disparate Treatment Law

• Author: Michael J. Zimmer
• Position: Visiting Professor of Law, University of Illinois
• Pages: 577-603

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Visiting Professor of Law, University of Illinois; Professor of Law, Seton Hall University. I want to thank Margaret L. Moses, Charles A. Sullivan, and, for her excellent research and all around help, Christy Travis, Illinois Class '01.

This article discusses the decision of the Supreme Court in Reeves v. Sanderson Plumbing Products, Inc.¹ This case may be an even more important individual disparate treatment case than the Supreme Court's 1993 decisions in Hazen Paper Co. v. Biggins,² and St. Mary's Honor Center v. Hicks.³ After Hicks, Professor Deborah Malamud analyzed all of the so-called McDonnell Douglas Corp. v. Green⁴ line of individual disparate treatment cases and concluded that a fundamental weakness in that approach was that "the Court's prior disparate treatment decisions... never succeeded in setting the prima facie case threshold high enough to permit the proven prima facie case to support a sufficiently strong inference of discrimination to mandate judgment for the plaintiff when combined only with disbelief of the employer's stated justification."⁵ The Court has not yet resolved that question. The evidence supporting the prima facie case plus evidence that defendant's reason is false does support a fact finder drawing the inference of intent to discriminate. Further, in reviewing that evidence plus the other circumstantial evidence for the purpose of deciding motions for summary judgment and judgment as a matter of law, the Court indicated that every inference must be drawn in favor of the nonmoving party, typically the plaintiff.⁶ Still, judgment for plaintiff is not mandated.

Alternatively, Reeves may be important but more limited. In that view, Reeves overturns the pretext-plus rule that had narrowed the McDonnell Douglas analysis even further than had Hazen Paper and Hicks, but it otherwise leaves intact the common practice of courts in slicing and dicing the evidence supporting plaintiff's case in order to grant motions for summary judgment and judgment as a matter of law. The basis for this more limited reading of Reeves is that the Supreme Court spent much of its opinion applying the rules as to motions for summary judgment and judgment as a matter of law to the facts of this particular case rather than announcing any new rules about how this should work. Lower courts may feel less Page 578 compelled to follow the example of the Supreme Court than they might otherwise be if the Court had announced new legal rules.

Only the future will tell which path the lower courts will take the law as a result of Reeves. It is the goal of this article to develop the expansive path, the path that will aid immeasurably in implementing our antidiscrimination laws. To demonstrate that potential path, Section I of this article will set forth the conventional structure of individual disparate treatment law as contemplated by Supreme Court precedent. Section II will show, from a global perspective, how the Fifth Circuit decision in Reeves misused that structure to circumscribe individual disparate treatment law almost completely. Section III then discusses both the substantive and the procedural issues decided by the Supreme Court decision in Reeves. Having looked at the two issues, the section sets forth how the effect of Reeves is greater than the individual import of the two issues decided; in other words the whole is greater than the sum of the parts. Section IV looks at the early returns of how the lower courts have applied Reeves, and the final section will look at why Reeves is yet to be followed.

I The Conventional Structure of Individual Disparate Treatment Cases

The analyses of individual disparate treatment cases, at least as viewed from Supreme Court precedent, is to first decide whether the "direct" evidence approach, created in Price Waterhouse v. Hopkins⁷ (as modified by the Civil Rights Act of 1991 amendments to Title VII) applies.⁸ Absent evidence that is sufficiently "direct," the "circumstantial"⁹ evidence approach established in McDonnell Douglas¹⁰ is the default method of analysis. That makes the boundary between the two methods, the presence of "direct" versus "circumstantial" evidence, a boundary that the Supreme Court has left undefined.

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For a case to go to the fact finder under Price Waterhouse, the plaintiff must introduce direct evidence (typically with additional circumstantial evidence) sufficient under the preponderance of evidence standard to support a reasonable fact finder concluding that the impermissible characteristic, such as race or gender, was "a motivating factor" for the employer's decision that plaintiff challenges.¹¹ "A motivating factor" is a low threshold of liability since it is met if race or gender is found to play any role at all in the employer's decision. If the fact finder does find that the impermissible characteristic was "a motivating factor," that raises the question whether the employer has introduced evidence sufficient to support the fact finder drawing an inference that it nevertheless "would have taken the same action in the absence of the impermissible motivating factor."¹² If the fact finder finds that the employer has carried its burden of persuasion on this so-called "same decision" defense, then the defendant is still held liable for having discriminated but plaintiff is entitled only to limited remedies.¹³

If the court finds that the threshold for applying Price Waterhouse is not met because plaintiff has not introduced evidence that the court is willing to characterize as sufficiently "direct," then McDonnell Douglas applies. To go to the fact finder under McDonnell Douglas, plaintiff must introduce evidence sufficient under the preponderance of evidence test to support an inference that the plaintiff's treatment by the employer was not the result of the most common reasons that would explain the employer's decision as nondiscriminatory.¹⁴ That inference creates in favor of the plaintiff a presumption that the reason for the employer's action was discriminatory.¹⁵ That presumption puts the burden on the defendant to produce evidence that it acted for a nondiscriminatory reason.¹⁶ Ultimately, if a material Page 580 issue of fact still exists, then the case goes to the fact finder, with the plaintiff carrying the burden of proving the ultimate question of whether the defendant acted with an intent to discriminate. This third step of analysis is sometimes called the "pretext" step because the issue is typically framed as a question of whether defendant's asserted reason for its action was not actually the reason for its action but instead was a pretext, a cover, to hide discrimination. Hicks made clear that plaintiff's proof of her prima facie case and proof that the defendant's reason was false did not justify summary judgment for plaintiff because the fact finder had to find the ultimate fact, that is, that defendant acted with an intent to discriminate. To do that, plaintiff must convince the fact finder that the preponderance of evidence supports an inference that the impermissible characteristic, such as race, sex or age, was the determinative influence in the employer's decision. To put that another way, but for discrimination, the employer would not have taken the challenged action against plaintiff. If the jury finds the employer acted with the intent to discriminate, plaintiff wins and is entitled to full remedies.

The same decision defense that is available in Price Waterhouse cases is not applicable in McDonnell Douglas cases because a finding that the determinative influence in the decision was an impermissible characteristic forecloses the possibility that the employer could have made the same decision if it had not considered plaintiff's race, gender or age. Stated differently, if the plaintiff has proved the employer would not have taken the action but for plaintiff's race, gender or age, that necessarily means that the employer would not have taken the action in the absence of that impermissible factor.

In brief comparison of the two methods of analyzing individual disparate treatment cases, the Price Waterhouse approach has the lower threshold showing-that the impermissible characteristic was "a motivating factor," but the defendant has a chance to limit plaintiff's full remedies by proving, nevertheless, that it would have made the same decision even "in the absence of the impermissible motivating factor." In contrast, McDonnell Douglas presents a higher threshold to plaintiff, the determinative factor test, but such a showing precludes defendant's use of the affirmative, same decision defense.¹⁷

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II The Fifth Circuit Decision In Reeves

The Fifth Circuit manipulated the conventional structure of individual disparate treatment law to limit very stringently the scope of the law against discrimination. Reeves v. Sanderson Plumbing Products, Inc.,¹⁸ an age discrimination case, is a good example of how that court applied individual disparate treatment law to virtually foreclose a successful individual disparate treatment case. Plaintiff, age fifty-seven when he was discharged, had worked for the company for forty years and had been the supervisor for many years of the regular production line in the department that made hinges for toilet seats. By the time of trial, the employer had successively employed three different replacements for the plaintiff. All were in their thirties; apparently none had worked out. Plaintiff also introduced evidence that one of...