Whose burden is it, anyway? The 11th Circuit's evolving standard for "burden-shifting" in employment discrimination cases.

• Author: Hankins, Robyn S.
• Position: U.S. 11th Circuit Court of Appeals

In 1964, Congress enacted Title VII, making it illegal for employers to discriminate against individuals on the basis of race, color, religion, sex, or national origin.(1) In doing so, Congress sought to eradicate the remaining vestiges of discrimination by requiring employers to remove "artificial, arbitrary, [and] unnecessary barriers to employment"(2) that operate to exclude and depress workers on the basis of immutable characteristics such as race, sex, national origin, and the like. Congress has since expanded its prohibition against discrimination by adopting laws aimed at remedying discrimination against other groups, such as pregnant women,(3) persons over 40,(4) and disabled persons.(5) Since the adoption of these statutes, courts have struggled to balance Congress' articulated goals of ensuring discrimination-free workplaces against the legitimate business needs of employers.(6)

Recognizing that discriminatory animus is an elusive factual question made more difficult by the increasing sophistication of persons harboring such an animus,(7) and "seeking to ease the evidentiary burdens on employment discrimination plaintiffs, who are rarely fortunate enough to have access to direct evidence[,]"(8) the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. at 802, adopted a burden-shifting mechanism under which a discrimination plaintiff can raise an inference of discrimination, despite the unavailability of direct evidence, by establishing some permutation of the following:

1) Plaintiff is a member of a protected group;

2) Plaintiff was qualified and applied for an available position;

3) Plaintiff was rejected despite plaintiff's qualifications; and

4) The position remained open and plaintiffs employer continued to seek applicants from persons of plaintiffs qualifications.(9)

This test is elastic and malleable: changing depending on the facts and circumstances of a particular case.(10) Once the plaintiff presents evidence to establish these elements, unlawful discrimination is presumed.(11) An employer then bears the burden of producing (not proving) a legitimate, nondiscriminatory reason for its challenged job action, in response to which the plaintiff bears the burden of proving that the employer's stated reasons are merely pretextual and that the real reason for the decision was discriminatory.(12) Under this analysis, the burden of proof remains at all times with the plaintiff.(13)

Some cases, however, do not fit neatly within this burden-shifting framework. Indeed, in some cases, the plaintiff cannot establish a prima facie case under McDonnell Douglas, but can prove through more traditional means that a challenged job action was motivated by discrimination. Courts have dubbed these cases "direct evidence"(14) cases.(15) The distinction between cases involving circumstantial evidence (those proven under McDonnell Douglas) and "direct evidence" is essential, for this determination establishes who bears the burden of proof on certain issues at trial.(16)

The Supreme Court first squarely tackled the issue of "direct evidence" in the context of employment discrimination claims in Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985). In Trans World, plaintiffs, pilots with Trans World Airlines, challenged TWA's policy of permitting pilots disqualified from flying on any basis other than age to "bump" others on the seniority list for the flight engineer position, but refusing pilots disqualified from flying on the basis of age the same "bumping" privileges. The Court unanimously held that this policy (which TWA did not deny) constituted direct evidence of discrimination and, thus, that the lower court erred in granting summary judgment in favor of TWA on the basis that plaintiffs could not establish a prima facie case under McDonnell Douglas.(17) However, the Court did not address what evidence, if any, short of a formal policy of discrimination would rise to the level of "direct evidence."

The Supreme Court's next decision regarding "direct evidence," Price Waterhouse v. Hopkins,(18) is was much more controversial, generating only a plurality decision. In that case, the plaintiff, Ann Hopkins, was denied partnership on two occasions. During the course of her review for partnership, Price Waterhouse partners described Hopkins as "macho," suggested she "overcompensated for being a woman," advised her to take "a course at charm school," criticized her use of profanity as unladylike, commented that she had "matured from a tough-talking somewhat masculine hard-nosed manager to an authoritative, formidable, but much more appealing lady partner candidate." In explaining to Hopkins what she could...