Chaos or Coherence: Individual Disparate Treatment Discrimination and the Adea - Michael J. Zimmer

• Publication year: 2000

Chaos or Coherence: Individual Disparate Treatment Discrimination and the ADEAby Michael J. Zimmer*

Individual disparate treatment law appears to be in a chaotic state. The one clear thrust is that the Supreme Court's jurisprudence in the area, and even Congress's most recent amendments¹ to Title VII,² no longer govern the field alone. This chaos, however, may be the prelude to a new coherence. That possibility is the point of this Article, which will explore it from the viewpoint of the Age Discrimination in Employment Act ("ADEA").³

Part I sets the stage by describing the initial failure of Justice Brennan's attempt in Price Waterhouse v. Hopkins⁴ to supplant the preexisting framework established in McDonnell Douglas Corp. v. Green⁵ with a new framework. The actual effect of Price Waterhouse was not only to create a new, alternative approach to analyzing individual disparate treatment cases, but also to limit the application of that approach to a small subset of cases involving "direct" evidence of discrimination. Even Congress's 1991 amendments to Title VII did not have the immediate effect of removing the McDonnell Douglas framework as the general approach applied to most cases. Part II traces recent developments among the courts of appeals. These decisions have taken a number of different approaches that have differing effects on the existing law of individual disparate treatment discrimination. The most significant decisions have supplanted the McDonnell Douglas approach in Title VII cases with a modified Price Waterhouse approach. Part III then addresses whether such new approaches should be applied in individual disparate treatment cases in which plaintiffs have asserted age discrimination under the ADEA. Finally, Part IV looks to the consequences of these developments in terms of the remedies available in age discrimination cases.

I. The Initial Failure of Justice Brennan in Price Waterhouse

A quick trip down memory lane sets the backdrop for where we are now. In 1973 the Supreme Court in McDonnell Douglas created a standard for proving a prima facie case of discrimination that was easy for plaintiffs to establish.⁶ By 1981, in Texas Department of Community Affairs v. Burdine,¹ the Supreme Court started cutting back on McDonnell Douglas. The defendant's rebuttal became as easy to establish as the plaintiff's prima facie case showing, and the Court made it clear that, in the final analysis, the plaintiff had the ultimate burden of proving that she was the victim of intentional discrimination.⁸ The evisceration of McDonnell Douglas that began in Burdine was not completed until the 1993 decisions in Hazen Paper Co. v. Biggins⁹ and St. Mary's Honor Center v. Hicks.¹⁰ Since then critics have charged that the way courts apply McDonnell Douglas, and perhaps McDonnell Douglas itself, has become an obstacle rather than an aid to the full enforcement of our antidiscrimination laws.¹¹

In 1989, before the full retreat on McDonnell Douglas had become clear, Justice Brennan tried unsuccessfully to establish a new method of proof that would supplant McDonnell Douglas as the primary approach for analyzing individual disparate treatment cases. In Price Waterhouse v. Hopkins,¹² Justice Brennan, writing for a plurality of four, said that to establish a prima facie case, the plaintiff need only prove, by a preponderance of the evidence, that her race, gender, or other protected characteristic was a motivating factor for the employer's decision she challenged.¹³ Upon that showing, the burden of persuasion shifts to the defendant to try to avoid liability by proving as an affirmative defense that it would have made the same decision absent the discrimination.¹⁴

In a footnote Justice Brennan indicated that this new approach would take precedence over, but would not completely replace, the McDonnell Douglas method.¹⁵ For all practical purposes, however, the net effect would be that the new approach would supplant McDonnell Douglas. The footnote starts with the proposition that "plaintiffs often will allege, in the alternative, that their cases are both [Price Waterhouse and McDonnell Douglas cases]."¹⁶ Once discovery is complete, the trial judge must decide whether there is evidence to support the Price Waterhouse approach, which applies whenever there is evidence that "both legitimate and illegitimate considerations played a part in the decision against" the plaintiff.¹⁷ If there is, then the "particular case involves mixed motives."¹⁸ Because in every McDonnell Douglas case there is the plaintiff's evidence that an illegitimate consideration was involved as well as the defendant's evidence of a nondiscriminatory reason for its action, it would seem that evidence of more than one motive is present in the record in every case. That would seem to allow the factfinder to find in every case one of three possible outcomes: (1) the motive was only the one asserted by the plaintiff; (2) the motive was only the one asserted by the defendant; or (3) both were to some extent involved so that the motives could be said to be mixed. With such evidence in the record, the case should then be sent to the factfinder, first on the Price Waterhouse mixed-motives theory and then, if the jury does not find for the plaintiff on that approach, on the McDonnell Douglas IBurdine circumstantial evidence theory. "If the plaintiff fails to satisfy the factfinder that it is more likely than not that a forbidden characteristic played a part in the employment decision," thereby failing to prove the Price Waterhouse count, "then she may prevail only if she proves, following Burdine, that the employer's stated reason for its decision is pretextual."¹⁹ What Justice Brennan did not say, at that point, is what happens to the McDonnell Douglas count if the plaintiff is successful in proving the Price Waterhouse count that "more likely than not [] forbidden characteristic played a part in the employment decision."²⁰ Presumably, if the factfinder so concludes, there is no need to go further with the McDonnell Douglas inquiry. Instead, the factfinder should, if the defendant has introduced evidence sufficient to create a material issue of fact on the point, proceed directly to the affirmative defense of deciding whether "the defendant may avoid . . . liability ... by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff's gender into account."²¹

While Justice Brennan claimed that Price Waterhouse did not affect McDonnell Douglas, McDonnell Douglas did lose its pride of place because the Price Waterhouse approach comes first. Moreover, in practical effect Price Waterhouse supplanted McDonnell Douglas because, if the plaintiff wins on Price Waterhouse, the factfinder never gets to McDonnell Douglas. In the alternative, if the plaintiff fails to convince the factfinder that an impermissible factor, such as race or sex, played a motivating part in the employer's decision, it is difficult to imagine the factfinder then being convinced that the true reason for, or the single source of, the employer's action was intentional discrimination under McDonnell Douglas. That conclusion is especially true because, at the time the Court decided Price Waterhouse, four of the courts of appeals required the plaintiff to make the McDonnell Douglas showing to the

"but-for" level,²² which is a much more arduous burden than the "motivating factor" level of Price Waterhouse.

Justice Brennan failed in his attempt to restart individual disparate treatment theory based on his new theory because his opinion carried only three other Justices. To make a decision of the Court, it is necessary to look to the concurring opinion of either Justice White or Justice O'Connor. Both raised the bar for the plaintiff's initial showing. Rather than the "motivating factor" test proposed by Justice Brennan, they required the plaintiff to prove that the impermissible consideration was a "substantial factor" in the employer's decision.²³

Justice O'Connor added another, more significant obstacle to the use of the new method. She would further require the plaintiff to rely on direct evidence of discrimination to qualify for the lower threshold showing to make out a prima facie case of discrimination.²⁴ In nineteenth century evidence law, direct evidence was evidence that proved a fact at issue without the need to draw an inference. While Justice O'Connor did not exactly define the term, the statements of defendant's decisionmakers that admitted using gender satisfied her notion of direct evidence in Price Waterhouse.²⁵ In dissent, Justice Kennedy, joined by Chief Justice Rehnquist and Justice Scalia, jumped at the chance of limiting the effect of Price Waterhouse by describing the holding of the case as being based on Justice O'Connor's, rather than Justice White's, concurrence.²⁶

[T]he actual holding of today's decision . . . [is] that in a limited number of cases Title VII plaintiffs, by presenting direct and substantial evidence of discriminatory animus, may shift the burden of persuasion to the defendant to show that an adverse employment decision would have been supported by legitimate reasons. The shift in the burden of persuasion occurs only where a plaintiff proves by direct evidence that an unlawful motive was a substantial factor actually relied upon in making the decision.²⁷

As predicted by astute commentators,²⁸ the lower courts generally adopted Justice O'Connor's concurrence in the first round of decisions after Price Waterhouse. What this meant was that McDonnell Douglas survived as the primary way to analyze individual disparate treatment cases because, as the dissent in Price Waterhouse indicated, there are only a limited number of cases in which plaintiffs can produce the direct evidence necessary to trigger the Price Waterhouse framework.²⁹

This pride of place for McDonnell Douglas did not change immediately...