Human Rights Commentator

• Pages: 429
• Publication year: 2021

Connecticut Bar Journal Volume 67.

67 CBJ 429. HUMAN RIGHTS COMMENTATOR

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429

HUMAN RIGHTS COMMENTATOR

EMANUEL MARGOLIS(fn*)

"Title VII..(fn1). has been characterized as having become "the most profound and enduring - and effective - piece of civil rights legislation passed by Congress in this century. (fn2) This statute makes it unlawful for an employer ". . . to discriminate against any individual with respect to his (sic) compensation, terms, conditions, or privileges of employment, because -of such individual's race, color, religion, sex or national origin.(fn3)As far back as 1971, the Supreme Court construed the phrase terms, conditions, or privileges of employment" as showing a Congressional intent to remove ". - . artificial, arbitrary, and unnecessary barriers to employment when the barriers operate indiviously to. discriminate on the basis of racial or other impermissible classification.(fn4)The Court declared that the statute was not only intended to proscribe overt discrimination, "but also practices that are fair in form, but discriminatory in operation.(fn5)

Where gender discrimination in the workplace is at issue, Title VII's protective umbrella has been given similar broad scope. The statutory phrase "terms, conditions, or privileges of employment" has been construed as going beyond "economic or 'tangible' discrimination,(fn6) but evincing a broad legislative intent "to strike at the entire spectrum of disparate treatment of men and women" in the workplace.(fn7)

The significance of Title VII in the real life of employers and their work force can hardly be overestimated. This milestone in the ongoing struggle for civil rights has provided a major administrative and judicial vehicle for the hiring, promotion and protection, not only of minorities and women, but whites,(fn8) men and members of religious and ethnic groups. The techniques for adjudicating claims under Title VII "have made it possible to eradicate not only overt acts of intentional discrimination, but also the subtler, more arbitrary forms of decisionmaking which have had an adverse impact on minorities and women seeking jobs.(fn9)

With the foregoing as a doctrinal frame of reference, two 1993 decisions merit attention. One bears the stamp of a conservative Court, a majority of whose justices continue to live in a world wherein the "subtler, more arbitrary forms of decisionmaking" in the workplace are foreign to their experience. In this area the perceived middle-ground "troika" of Justices O'Connor, Kennedy and Souter have not pulled together. As a result, civil rights adjudication took a major step backward this past year in the Court's 5-4 decision in St. Mary's Honor Center v. Hicks."(fn10)

At the same time, the Court took a halting step forward in Harris v. Forklift Systems, Inc.,(fn11) the first major decision in which the Court's newest Justice (Ruth Bader Ginsburg) took part, and an active one at that. This case may well prove to be the more durable of the two, however, if, as has been predicted, the Hicks decision, like other Supreme Court opinions which run so clearly counter to the legislative intent of Congress, is set aside by further legislation.(fn12)

1. ST. MARY'S HONOR CENTER ET AL v. HICKS

The decision in St. Mary's Honor Center v. Hicks, a case involving alleged intentional racial discrimination in violation of § 703(a) (1) of Title VII, arose as a result of a bench trial before a district court in Missouri, which resulted in the rejection of the employer's asserted reasons for its actions in discharging Melvin Hicks, a black man who had been hired as a corrections officer at St. Mary's.(fn13) In point of fact, the decision for the majority by

Justice Scalia enters into the various procedural burdens that parties face in the presentation and defense of a Title V11 case. The result of the Court's decision is to make it far more difficult for plaintiffs to prevail in Title VII cases.

The pertinent facts are as follows:(fn14) Mr. Hicks had long enjoyed a satisfactory employment record as a shift commander until certain administrative changes took place at St. Mary's. With the appointment of a new superintendent, he became the subject of repeated and increasingly severe disciplinary actions. At one point he was suspended for five days for violation of institutional rules committed not by him but by his subordinates; he received a letter of reprimand for his alleged failure to conduct an adequate investigation of a brawl among inmates that had occurred on his watch; he later suffered a demotion from shift commander to correctional officer for his alleged failure to insure that his subordinates entered their use of a St. Mary's vehicle into the official logbook; and, finally, on June 7, 1984, he was discharged for threatening his immediate supervisor during a heated exchange. His employer gave two primary reasons for Hicks's treatment and eventual discharge: first, his violation of internal procedures, and, second, his threats to his new supervisor.

The District Court found these reasons pretextual, but nevertheless ruled in favor of St. Mary's on the theory that the plaintiff had not proven that the crusade to terminate him was racially rather than personally motivated. The Eighth Circuit reversed on the grounds that all of the employer's proffered reasons were pretextual and that Hicks was, therefore, entitled to judgment as a matter of law, because the employer was left in a position of having offered no legitimate reasons for its actions.(fn15)

There were three prior Supreme Court cases which had laid the groundwork for establishing the procedural burdens facing a plaintiff in a Title VII case. They are McDonnell Douglas Corp. v. Green;(fn16) Texas Dept. of Community Affairs v. Burdine;(fn 17) and U.S. Postal Service Board of Governors v. Aikens(fn18)

Under what the Court refers to as the "McDonnell Douglas scheme," the employee's "[elstablishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee."(fn19) It is of interest to note that the employer in this case did not even contest the finding of the District Court that Mr. Hicks had satisfied the minimal requirements of a statutory prima facie case by proving (1) that he is black, (2) that he was qualified for the position of shift commander, (3) that he was demoted from that position and ultimately dischatged, and (4) that the position...